Nelson De Sousa v Just Skip Bins Pty Ltd - [2023] FWC 2050

[2023] FWC 2050

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Nelson De Sousa
v

Just Skip Bins Pty Ltd

(U2023/3621)

DEPUTY PRESIDENT CROSS

SYDNEY, 16 OCTOBER 2023

Application for an unfair dismissal remedy

Mr Nelson De Sousa (the Applicant) was employed as an Accounts Administration Manager by Just Skip Bins Pty Ltd (the Respondent) from 23 November 2021, until he was dismissed on 26 April 2023. The Applicant was employed pursuant to the Waste Management Award (the Award) on a salary of $85,000p.a.

On 28 June 2023, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The Applicant filed his materials, consisting of a submission and a Statement of the Applicant, nine days after their due date pursuant to the Directions. On 21 July 2023, the Respondents representative wrote to my Chambers noting the Applicants non-compliance and seeking the matter to be dismissed by want of prosecution. The matter was listed for an interim hearing on the Respondent’s application on 26 July 2023, at which that application for dismissal for want of prosecution was dismissed.

On 26 July 2023, after the conclusion of the interim hearing, the Directions were varied (the Amended Directions). The parties complied with the Amended Directions, in particular:

(a) On 9 August 2023, the Respondent filed an Outline of Submissions, with a Witness Statement from Mr John Scarlis, a Director of the Respondent, and;

(b) On 14 August 2023, the Applicant filed a witness statement in reply.

The Hearing of the Application occurred on 16 August 2023 (the Hearing).

Background Facts

Outlined below are the facts as I have found them to exist. The determination of some of those facts has involved determining facts where varying recollections existed between the Applicant on one hand, and Mr Scarlis on the other. Where such variation existed, I have preferred the evidence of Mr Scarlis, who gave considered and truthful testimony, readily making concessions against the Respondent’s interests where appropriate.

The Applicant, on the other hand, clearly sought to tailor his evidence to portray himself in a manner that he thought would most assist his case, regardless of truth. He was deliberately non-responsive to questions put to him, particularly regarding previous customer complaints, having denied the evidence of those complaints in his Statement in Reply.

On 12 November 2021, the Applicant received an email from Mr Harry Scarlis with an offer of employment. On 16 November 2021, the Applicant received a formal letter of offer. It relevantly stated:

Letter of Offer

I am pleased to offer you employment in the position of Accounts Administration Manager with us at Just Skip Bins Pty Ltd ('the employer') on the terms and conditions set out in this letter.
1. Position
1.1 Your start date with the employer is 23 November 2021.

1.2 Your employment will be Full Time.

1.3 The duties of this position are set out in the attached position description. You will be…

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.

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Details

Case: [2023] FWC 2050
Decision Date: 16 OCTOBER 2023

CaseChat Overview and Summary

Nelson De Sousa, an accounts administration manager, brought a claim for unfair dismissal against his employer, Just Skip Bins Pty Ltd, before the Fair Work Commission. The dispute arose after Mr De Sousa was dismissed on 26 April 2023, following a history of behavioural issues, including blunt and passive-aggressive communication with colleagues and customers. The employer had previously warned Mr De Sousa about his conduct but ultimately dismissed him after he left work without notice following a meeting about his performance and conduct. The Commission found that while the employer had valid reasons for dismissal, the process leading up to the dismissal was not fair. In particular, Mr De Sousa was not made aware of the purpose of the meeting on 24 April 2023, was not given an opportunity to defend the recent allegations of poor performance or explain his conduct, and was simply told to resign if he could not do his job. The Commission found that the dismissal was harsh, unjust or unreasonable due to failures in procedural fairness, and awarded Mr De Sousa compensation.

Orders