DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Waddy
v
Ability Centre Australasia Ltd
(U2021/1108)

DEPUTY PRESIDENT BEAUMONT

PERTH, 31 MAY 2021

Application for an unfair dismissal remedy.

1 Introduction

[1] This decision concerns an application made by Mr Paul Waddy (the Applicant) under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy.

[2] Ability Centre Australasia Ltd (the Respondent) dismissed the Applicant, its former General Hand, for his failure to comply with its Social Media Policy and Code of Conduct (Code). Following a complaint from a member of the public, the Respondent was apprised of comments the Applicant had made in Facebook posts. It viewed the posts, noted its name was referred to on his Facebook profile page, listened to the Applicant’s explanations for the posts and thereafter formed the view that the Applicant’s actions had caused a serious and imminent risk to the reputation, viability and profitability of the organisation.

[3] The Respondent is a not-for-profit organisation established in 1951 to provide services for people with cerebral palsy. As of 2021, the Respondent provided support and services to 2100 customers living with cerebral palsy, autism and other physical and intellectual disabilities.

[4] Until the complaint was received, the Respondent was unaware of the Applicant’s Facebook posts. On the whole, it seemed that the Respondent was satisfied with the Applicant’s work. On receiving the complaint, Mr Cutri, the Chief Financial Officer and Company Secretary of the Respondent, viewed the content of the Facebook posts. There were six posts. Two were dated 3 October 2020, and the remainder were dated 24 October 2020, 5 November 2020, 9 November 2020 and 31 December 2020. The Facebook posts read:

Fuck off traditional owners. We are Australian, we are one. You are the racist scum. You never had a football, you never cultivated land, you never had towns or permanent buildings, you never had TV and you never had social security.

You claim a 60,000 year history and you did what?

Now let’s just watch the footy.

Oh Leigh Sales, you ABC slut whore, the whole world is not celebrating the passing of the Trump era. You, the ABC, and all of you media slut whores do not deserve to draw breath. You had the power and you used it to promote division, well done. No thinking person trusts the media any longer thanks to you and your slut/whores compatriots. Feel proud when you explain your actions to you children and grandchildren.

Stalin, Hitler, Mao, Castro and other prominent lefties have used the slut/whores like yourself to further their careers, slaughtering millio…

Flash your tits bimbo, flash it all, I like them, you have made them public property.

Only Aboriginal nurses and doctors for Aboriginals. Problem fixed. 60,000 years on this island, you must have a hugely advanced health care system.

Play the race card and suffer. Suckers.

The very same people will tell you…

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: [2021] FWC 3030
Decision Date: 31 MAY 2021

CaseChat Overview and Summary

The case of Paul Waddy v Ability Centre Australasia Ltd was brought before the Fair Work Commission. The applicant, Mr Waddy, sought relief for an alleged unfair dismissal from his employment with the respondent, Ability Centre Australasia Ltd. Mr Waddy claimed that his dismissal was unjust, without valid reason, and in violation of the provisions outlined in the Fair Work Act 2009. The respondent company contested the allegations, asserting that the dismissal was justified and in accordance with the applicable employment laws.

The primary legal issues the commission needed to address were whether the dismissal was indeed unfair and whether the respondent had valid grounds for terminating Mr Waddy's employment. The commission examined the evidence presented by both parties, including the circumstances surrounding the dismissal, the applicable employment contract terms, and the principles of fairness as they apply in the context of employment law. Furthermore, the commission considered whether the respondent had followed the required procedural steps and if Mr Waddy had been afforded a reasonable opportunity to respond to the allegations against him.

In its decision, the commission found that the respondent had valid grounds for terminating Mr Waddy's employment and that the dismissal process complied with the necessary legal requirements. The commission concluded that the dismissal was not unfair, as the respondent had acted within its rights under the employment contract and the law. The commission's reasoning was based on the evidence provided and the application of the relevant legal principles. As a result, the application for an unfair dismissal remedy was dismissed.

No further orders were made by the commission in light of its findings. The decision was based on the specific circumstances of this case and the evidence presented. The outcome underscores the importance of adherence to legal procedures in employment terminations and the need for employers to provide fair and justifiable reasons for dismissal.

Orders