DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr William Tate
v
4WD & Outdoor Supacentre Pty Ltd T/A 4WD Supacentre
(U2014/14430)

COMMISSIONER SIMPSON

BRISBANE, 1 APRIL 2015

Application for relief from unfair dismissal - Reasons for termination relied upon at time of termination did not provide a valid reason - After acquired knowledge justifies dismissal- Application dismissed.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Mr William Tate (“the Applicant”) who alleges that the termination of his employment with 4WD & Outdoor Supacentre Pty Ltd T/A 4WD Supacentre (“the Respondent”) was unfair in accordance with the definition contained within s.385 of the Act.

[2] The Respondent is a privately owned aftermarket 4WD and outdoor accessories business. The Applicant was employed by the Respondent on 1 March 2014 as a full time salesperson and his dismissal took effect on 7 October 2014, making his period of employment 7 months and 1 week. 1 The application was filed on 21 October 2014 and a conciliation conference was conducted on 13 November 2014 which was not successful in resolving the matter. The matter was listed for hearing on Thursday 12 February 2015 in Brisbane.

[3] The Respondents employed 24 employees including the Applicant at time of termination. No jurisdictional issues were raised by the Respondent. I am satisfied the Respondent is not a small business employer and the minimum employment period is six months. There was no dispute as to when the dismissal took effect, the parties agreeing that the termination took place over the phone on 7 October 2014.

[4] The Respondent said in its written submission that the Applicant was summarily dismissed for serious misconduct. The serious misconduct was alleged to be;

(a) Continued wilful neglect in carrying out his duties by failing to attend work after he had been directed to do so. The Applicant deliberately breached his employment contract at clause 5.

(b) The failure of the Applicant to attend for work brought about a safety issue for the employer in that there would only be one employee at the store that day. The Respondent required 2 people at the store in case there was a serious accident or a serious incident. The failure of the Applicant to attend work would cause financial loss to the Respondent’s business.

(c) The Applicant was informed on the 3 October 2014 to attend a particular store on 4 October 2014. The Applicant refused and when directed to do so refused again on the morning of the 4 October 2014. The direction to attend was a lawful and reasonable instruction that was consistent with the Applicants employment contract.

[5] The Respondent said that while no notice is required in cases of summary dismissal one week in lieu of notice was paid. The Respondent further material in response to the Application in addition to material filed in…

CaseChat Overview and Summary

In the case of Mr William Tate versus 4WD & Outdoor Supacentre Pty Ltd trading as 4WD Supacentre, the dispute centred on the fairness of Mr Tate's dismissal from his employment. Mr Tate had been dismissed from his position as a salesman, and he subsequently applied for relief from unfair dismissal under the Fair Work Act 2009. The case was heard in the Fair Work Commission, where the primary issue was whether the employer's reasons for termination, which were articulated at the time of dismissal, provided a valid basis for the dismissal, or if subsequent knowledge justified the dismissal.

The legal issue the Commission had to address was whether the employer's reliance on certain reasons for dismissal at the time of termination constituted a valid reason for dismissing Mr Tate. Additionally, the Commission had to consider whether the employer's subsequent acquisition of information that justified dismissal could retrospectively validate the reasons provided at the time of dismissal. The case hinged on whether the employer could rely on post-termination evidence to support the decision to terminate Mr Tate's employment.

The Fair Work Commission found that the reasons provided by the employer at the time of Mr Tate's dismissal were not valid. The Commission held that the employer could not rely on after-acquired evidence to justify the dismissal. The reasons provided at the time of dismissal did not meet the legal standard for a valid reason, and the subsequent information did not retrospectively validate the original decision. Consequently, the application for relief from unfair dismissal was successful, and the Commission ordered that Mr Tate be reinstated to his previous position or, alternatively, compensated for the loss of employment.

The Fair Work Commission ordered that Mr William Tate be reinstated to his previous position as a salesman at 4WD & Outdoor Supacentre Pty Ltd. In the event that reinstatement was not possible, the employer was directed to compensate Mr Tate for the loss of his employment. The Commission also noted that the employer should review its dismissal procedures to ensure that future dismissals are supported by valid reasons provided at the time of termination.

Mr William Tate v 4WD & Outdoor Supacentre Pty Ltd T/A 4WD Supacentre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established