Nathan Stuart Wilson v PumpEng - [2022] FWC 2328

[2022] FWC 2328

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Nathan Stuart Wilson
v

PumpEng

(U2022/1086)

COMMISSIONER SCHNEIDER

PERTH, 13 SEPTEMBER 2022

Application for an unfair dismissal remedy - Application for an unfair dismissal remedy - Serious misconduct resulting in dismissal - Facts acquired after dismissal

On 25 January 2022, Mr Nathan Wilson (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with PumpEng Pty Ltd (the Respondent). The Applicant seeks compensation for his dismissal.

The Applicant filed submissions and evidence in support of the application in the Commission on 20 May 2022. The Respondent filed submissions and evidence in the Commission on 3 June 2022. Reply submissions and evidence were filed by the Applicant on 10 June 2022.

As the matter involved contested facts, the Commission is obliged by section 397 of the Act to conduct a conference or hold a hearing.[1] A Hearing of the matter was held on 22 June 2022.

The following witnesses gave evidence on behalf of the Applicant at the Hearing:

· Mr Nathan Wilson, the Applicant.

· Danielle McMartin (Ms McMartin), the Applicant’s partner and a former employee of the Respondent.

· Steve McMartin (Mr McMartin), the Father-in-Law of the Applicant.

The following witnesses gave evidence on behalf of the Respondent at the Hearing:

· Paul Meneghel (Mr Meneghel), Managing Direction of the Respondent.

· Larrisa Winter (Ms Winter), Financial Controller of the Respondent.

· Daniel Kingston (Mr Kingston), Branch Manager of the Respondent.

The following witnesses, called by the Respondent, had their statements accepted into evidence and were not required for questioning by either party at the Hearing:

· James Trewin, Previous Employee of the Respondent, who held the position of Strategic Business Development Manager.

· Tom Farinola, National Service Centre Manager of the Respondent.

Factual Background

The Applicant commenced employment with the Respondent on 17 December 2018 as a Submersible Pump Technician. The Applicant was promoted in March 2020 to the position of Group Technical Support based in Kalgoorlie.

The Applicant’s partner was also engaged by the Respondent and her employment with the Respondent ceased in November 2021.

The Applicant was displeased with the Respondent’s decision to terminate his partner’s employment with the business.

On 3 January 2022, the Applicant was issued a letter containing 8 allegations of alleged breaches of the Respondent’s Code of Conduct and business policies and procedures. The 8 allegations are outlined below:

“1. On 26 November 2021 you engaged in threatening and aggressive behaviour towards Tom Farinola, National Service Centre Manager of PumpEng by stating words to the effect “you also have a responsibility to act for yourself and not just the direction of the business, I will go after you”.

2. On 30 November 2021 you engaged in threatening behaviour towards Paul Meneghel, Managing Direction of PumpEng, by stating words to the effect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nathan Stuart Wilson v PumpEng

Details

AGLC: Nathan Stuart Wilson v PumpEng [2022] FWC 2328
Case: [2022] FWC 2328
Decision Date: 13 SEPTEMBER 2022

CaseChat Overview and Summary

Nathan Stuart Wilson brought an application to the Fair Work Commission under section 394 of the Fair Work Act 2009 for a remedy for his unfair dismissal from PumpEng. PumpEng dismissed Mr Wilson for serious misconduct on 5 January 2022. The Commission must determine whether Mr Wilson was protected from unfair dismissal and whether his dismissal was harsh, unjust or unreasonable. The Commission found that Mr Wilson was protected from unfair dismissal at the time of dismissal. The Commission found that Mr Wilson had been given a valid reason for his dismissal and had been given an opportunity to respond. The Commission found that there was a valid reason for Mr Wilson's dismissal, being that he engaged in serious misconduct, and the dismissal was not harsh, unjust or unreasonable. The Commission dismissed the application.

Orders