Oliver Doherty v Defend Fire Services Pty Ltd T/A Defend Fire - [2024] FWC 1444

[2024] FWC 1444

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Oliver Doherty
v

Defend Fire Services Pty Ltd T/A Defend Fire

(U2024/74)

COMMISSIONER CRAWFORD

SYDNEY, 3 JUNE 2024

Application for relief from unfair dismissal – serious safety breach - dismissal not unfair – application dismissed

Background

Oliver Doherty (Mr Doherty) commenced full-time employment with Defend Fire Services Pty Ltd (Defend Fire Services) on 23 June 2021 as a Fire Technician. Mr Doherty also later commenced an adult sprinkler fitter apprenticeship. Mr Doherty was based in the Northern Territory and had been performing work on a Darwin Youth Justice Centre project. Mr Doherty was summarily dismissed for serious misconduct on 21 December 2023.

Mr Doherty filed an unfair dismissal application with the Fair Work Commission (Commission) on 2 January 2024. Defend Fire Services filed an employer response form on 10 January 2024. No jurisdictional objections were raised by Defend Fire Services.

Mr Doherty’s application was not resolved during conciliation. Directions were issued for the filing of material and the application was listed for determinative conference/hearing via video on 22 May 2024.

Mr Doherty represented himself at the determinative conference/hearing. Defend Fire Services was represented by:

·   Zalea de Wet (Workplace Relations Advisor)
·   Michael Nuthall (Managing Director)
·   Zylia Nuthall (Owner)

At the commencement of the proceeding, I indicated my provisional view was the proceeding should be conducted as a determinative conference so I can take a more active role in understanding the evidence. There was no opposition to this. The proceeding was conducted as a determinative conference.

Material relied upon

Mr Doherty

Mr Doherty relied on the following evidence and submissions in support of his unfair dismissal application:

· Form F2 Unfair dismissal application. Given the application contains some evidence from Mr Doherty about his employment and dismissal, I marked the application Exhibit A1.

· An email from Mr Doherty to the Commission dated 16 April 2024. The email contains evidence from Mr Doherty about his employment and dismissal. I marked the email Exhibit A2.

· A screenshot of a Facebook message where an individual is asking for advice about how to install part of a fire sprinkler system. Mr Doherty says the post is from an apprentice engaged by Defend Fire Services to work on the same job Mr Doherty was working on and that it demonstrates the lack of training and assistance provided by Defend Fire Services. I marked the screenshot Exhibit A3.

· A covering email from Mr Doherty to the Commission dated 16 April 2024. The email refers to attached phone records, WhatsApp messages, and an email relating to Mr Doherty’s dismissal. I marked the email Exhibit A4.

· A screenshot of Mr Doherty’s phone records which shows “Zaylia” called Mr Doherty at 1:40pm presumably on 21 December 2023. It appears “Zaylia” is the name given to Mrs Nuthall in Mr Doherty’s phone. There is also a screenshot of WhatsApp messages from a Defend…

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: [2024] FWC 1444
Decision Date: 3 JUNE 2024

CaseChat Overview and Summary

Oliver Doherty (Mr Doherty) filed an application for relief from unfair dismissal against Defend Fire Services Pty Ltd (Defend Fire Services) under section 394 of the Fair Work Act 2009 (FW Act). The application was heard and determined by Commissioner Crawford via a determinative conference on 22 May 2024. Mr Doherty was dismissed from his position as a Fire Technician at Defend Fire Services on 21 December 2023. He alleged the dismissal was unfair because it was harsh, unjust, or unreasonable. Defend Fire Services opposed the application, arguing the dismissal was fair because it was based on serious misconduct. The Commission found that although there were procedural deficiencies in the dismissal process, the serious misconduct committed by Mr Doherty provided a valid reason for dismissal. The Commission held that the seriousness of the misconduct effectively outweighed the procedural fairness deficiencies, and the dismissal was not harsh, unjust, or unreasonable. The application for relief from unfair dismissal was dismissed. The Commission also ordered Defend Fire Services to pay Mr Doherty his accrued annual leave entitlements within 21 days.

Orders