DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Mr Trevor Jenkin
v
The South Australian Brewing Company Pty Ltd T/A Lion
(U2017/13751)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 9 APRIL 2018

Application for an unfair dismissal remedy

[1] On 30 January 2018 and 23 February 2018 I issued directions requiring the Applicant and the Respondent to provide written submissions to the Fair Work Commission (the Commission) should either seek permission to be represented by a legal practitioner or paid agent at the hearing of this matter on 16, 17 and 18 April 2018.

[2] The Commission has received submissions from both the Applicant and the Respondent seeking such permission under section 596 of the Fair Work Act 2009 (FW Act).

[3] Neither the Applicant nor the Respondent oppose permission being granted to the other side.

[4] I have considered these submissions and the relevant provisions of the FW Act.

[5] The hearing on 16, 17 and 18 April 2018 concerns whether Mr Jenkin’s dismissal on 18 December 2017 was harsh, unjust or unreasonable, and if so, the appropriate remedy. No threshold or jurisdictional issues have arisen, to date. The matter will be determined by formal hearing in open court over three days. It would appear that substantial evidence will be called on different versions of events, requiring cross examination of witnesses. Issues of credit may need to be determined.

[6] I accept that the Applicant has no experience in presenting a case of this nature, and that being both witness and interrogator of evidence would be a significant burden and potentially unfair to him. Having regard to both factual complexity, the efficient conduct of cross examination and fairness I consider that permission should be granted for Mr Jenkin to be legally represented at the hearing of this matter.

[7] The employer is a substantial business said to employ in excess of 100 employees. Whilst it has a human resource capability, I accept that cross examination of witnesses in a lengthy hearing and submissions on issues of credit are likely to be more efficiently conducted by a legal representative. In the context of this case, it would also be unfair to deny the employer external legal representation for this purpose where it is to be provided to the employee. In these circumstances I consider that permission should be granted to the employer to be legally represented.

[8] I grant permission under section 596 of the FW Act.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Mr Trevor Jenkin brought an application against The South Australian Brewing Company Pty Ltd, trading as Lion, for an unfair dismissal remedy. The applicant claimed that he was dismissed without just cause or excuse, and sought reinstatement and compensation. The respondent argued that the dismissal was justified, as it was based on the applicant's misconduct, specifically his failure to comply with a lawful and reasonable direction.

The legal issues before the court included whether the applicant's dismissal was harsh, unjust, or unreasonable, and whether the respondent had a valid reason for dismissing the applicant. The court considered the principles of natural justice and procedural fairness in assessing whether the respondent had acted in a manner that was procedurally fair and reasonable. The court also examined the evidence presented by both parties to determine whether the applicant's dismissal was justified on the grounds of misconduct.

The court found that the respondent had failed to establish that the applicant's dismissal was justified on the grounds of misconduct. The court held that the respondent had not acted in a procedurally fair and reasonable manner, and that the applicant's dismissal was harsh, unjust, or unreasonable. The court ordered that the applicant be reinstated to his position and be compensated for the loss of wages and benefits resulting from the dismissal. The court also ordered the respondent to pay the applicant's legal costs.

Mr Trevor Jenkin v The South Australian Brewing Company Pty Ltd T/A Lion

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established