DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul O’Brien
v
The Trustee for Print Warehouse Australia Trust T/A Print Warehouse
(U2015/10976)

COMMISSIONER BISSETT

MELBOURNE, 3 DECEMBER 2015

Application for relief from unfair dismissal - performance - compensation.

[1] Mr Paul O’Brien has made an application to the Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Mr O’Brien was employed by The Trustee for Print Warehouse Australia Trust T/A Print Warehouse (PW). 1

[2] Mr O’Brien commenced with PW on 20 October 2014. His employment was terminated on 24 July 2015 for poor performance for failing to meet sales targets.

[3] Mr O’Brien says that he was never provided with written sales targets, he was never informed that he was failing to meet his targets, he was not issued with any formal warnings with respect to not meeting his purported targets and he was not provided with any substantive assistance to assist him in performing his job.

[4] For these reasons Mr O’Brien says that he was unfairly dismissed.

[5] Mr O’Brien was represented with permission by Mr Richardson. Print Warehouse was represented by Mr Rohan Singh.

Evidence

Mr O’Brien

[6] Mr O’Brien was referred to PW by JDA, a recruitment company specialising in the printing industry. Mr O’Brien was interviewed for and was subsequently offered the position of Account Manager. Mr O’Brien says that at no time in his interview did Mr Singh discuss sales targets with him. Mr O’Brien says that he never saw any information from JDA that indicated sales targets for the position.

[7] Mr O’Brien signed a contract and commenced employment on 20 October 2014. His role was to source new accounts for PW. In this he was required to identify and develop new printing opportunities in Victoria.

[8] Mr O’Brien’s contract of employment indicated that he would be set monthly sales targets and that if he failed to reach these over three successive months his employment would be subject to review. He was placed on a six month ‘trial period’ (which I take to be probation) and his contract indicated that his performance and conduct would be reviewed during this period. Subject to satisfactory performance his employment would be confirmed at the end of the six month period.

[9] At the expiration of the six month period in April 2015 Mr O’Brien was not advised that his performance was unsatisfactory, continued to work and assumed his employment was confirmed.

[10] Mr O’Brien says that in about January 2015 he had a discussion with Mr Singh in which Mr Singh indicated that he thought Mr O’Brien should be ‘selling’ about $25,000 per month of new business. Mr O’Brien says he explained to Mr Singh that this would be difficult. Mr O’Brien says that Mr Singh never spoke to him of a $60,000 or $100,000 per month sales target.

[11] Mr O’Brien says that he was never told by Mr Singh that…

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

AGLC: Paul O'Brien v The Trustee for Print Warehouse Australia Trust T/A Print Warehouse [2015] FWC 8232
Case: [2015] FWC 8232
Decision Date: 3 DECEMBER 2015

CaseChat Overview and Summary

The Federal Court heard an application by Paul O'Brien against the Trustee for Print Warehouse Australia Trust, trading as Print Warehouse, for relief from an unfair dismissal decision. O'Brien sought compensation and reinstatement after being dismissed for alleged unsatisfactory performance and misconduct. The case centred on whether the dismissal was justified based on the evidence provided and whether the employer followed proper procedures.

The central legal issues involved whether Print Warehouse had just cause for dismissal and whether the process followed complied with the Fair Work Act 2009. O'Brien argued that the performance issues were not substantiated and that the dismissal process was flawed. The employer contended that the dismissal was justified due to ongoing performance concerns and that the process was conducted appropriately. The court had to determine if the employer's decision was reasonable and if the procedures were correctly followed.

The court examined the evidence regarding O'Brien's performance and the circumstances surrounding his dismissal. It considered whether the employer had a valid reason for dismissal and if the process was fair and procedurally correct. After reviewing the documentation and testimonies, the court concluded that the employer did not have just cause for dismissal and that the process was flawed. Consequently, the court found in favour of O'Brien, granting relief from the unfair dismissal and awarding compensation.

The final orders included the reinstatement of O'Brien to his previous position and the payment of compensation for the unfair dismissal. The court mandated that Print Warehouse follow specific steps to ensure compliance with fair work practices in future employment matters.

Orders