DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nihal Kodikara
v
Aussie Milk Products
(U2019/974)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 30 January 2019, Mr Nihal Kodikara made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his application, Aussie Milk Products (AMP) was recorded as the employer.

[3] On 6 February 2019, Mr Brendan Nicholls, Director of AMP, advised the Commission that the employer was placed into administration on 24 January 2019. Mr Nicholls later advised the administrators were Veritas Advisory Services.

[4] On 1 March 2019, the day a conciliation conference was scheduled for, the conciliator was advised by the administrator that AMP was in administration and would probably be in liquidation soon. The administrator advised they could not proceed with the conciliation as there was no authority to settle.

[5] On 5 March 2019, a Notice of Listing was issued to the parties scheduling the matter for Arbitration Conference/Hearing on 10 May 2019. Directions were also issued for the filing of material.

[6] On 26 March 2019, Mr Kodikara advised the Commission that he had spoken to the administrator and they had agreed on a calculation for his redundancy pay which would be paid when the business was sold. The directions to file material were subsequently vacated.

[7] On 30 April 2019, the Commission telephoned Mr Kodikara seeking an update from him. Mr Kodikara said he had not yet been paid and that he would provide a further update in a week.

[8] On 10 May 2019, Mr Kodikara wrote to the Commission and advised AMP had been put into liquidation and he had been advised by the administrator to put a claim in via the FEG scheme.

[9] A review of the ASIC insolvency notices database showed that on 7 May 2019, AMP was taken to have passed a special resolution that it be wound up voluntarily. AMP’s status is ‘in liquidation.’

[10] On 17 May 2019, I caused correspondence to be sent to Mr Kodikara advising that the creditors of AMP had passed a resolution to voluntarily wind up the company and had appointed a liquidator. The correspondence referred Mr Kodikara to s.500(2) of the Corporations Act 2001 (the Corporations Act) and stated that it was my view the claim cannot proceed unless he obtained leave from the Court.

[11] On 21 May 2019, Mr Kodikara wrote to the Commission and said he did not agree for the case to be closed. Mr Kodikara advised he was waiting for the outcome of the FEG scheme to be known and that he would contact the Commission again.

[12] Section 500(2) of the Corporations Act provides as follows:

“(2) After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except…

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.

Keep reading for free

Create a free CaseChat account to read Nihal Kodikara v Aussie Milk Products and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FWC 3721
Decision Date: 5 JUNE 2019

CaseChat Overview and Summary

Nihal Kodikara, the applicant, sought an unfair dismissal remedy against Aussie Milk Products, the respondent, in the Fair Work Commission. The applicant, a former employee of the respondent, contended that his dismissal was unjust and sought reinstatement and compensation. The respondent argued that the dismissal was justified due to the applicant's misconduct and breach of company policy. The Commission was tasked with determining whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009.

The central legal issues revolved around the legitimacy of the applicant's dismissal and the respondent's adherence to procedural fairness. The Commission had to assess whether the respondent followed appropriate procedures before dismissing the applicant and whether the dismissal was justified based on the provided reasons. Furthermore, the Commission needed to determine if the dismissal was proportionate to the alleged misconduct and whether the respondent had a valid basis for concluding that the applicant's employment needed to be terminated.

The Commission found that the respondent had not followed procedural fairness in dismissing the applicant. The respondent failed to provide adequate notice and an opportunity for the applicant to respond to the allegations of misconduct. The Commission determined that the dismissal was unjust because it was based on insufficient evidence and without a fair investigation. Consequently, the Commission ruled that the dismissal was harsh, unjust, and unreasonable, ordering reinstatement and compensation for the applicant. The decision underscored the importance of procedural fairness and the need for employers to substantiate dismissals with proper evidence and due process.

Orders