[2016] FWC 2668

The attached document replaces the document previously issued with the above code on 29 April 2016.

Endnote 42 has been amended from [2015] FWC 6539 to [2014] FWC 6539.

Associate to Deputy President Clancy.

Dated 3 May 2016.

[2016] FWC 2668 [Note: An appeal pursuant to s.604 (C2016/3720) was lodged against this decision - refer to Full Bench decision dated 1 August 2016 [[2016] FWCFB 4104] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Aitken
v
CUB Pty Ltd
(U2015/15101)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 APRIL 2016

Application for relief from unfair dismissal.

[1] Mr Peter Aitken has applied under s.394 of the Fair Work Act 2009 (Cth)(FW Act) for reinstatement in relation to his dismissal on 13 November 2015 from his employment as a warehouse employee with CUB Pty Ltd.

[2] The reason CUB gave for the dismissal of Mr Aitken was that his conduct was ‘inconsistent with the trust and confidence required in the employment relationship’, 1 having previously conveyed the following findings in a letter regarding the outcome of an investigation into his conduct at work:

“…

There is a substantive history of you holding a disregard for adhering to basic policies and procedures at Abbotsford as documented on your file including two written warnings and a file note including not adhering to the site smoking policy in 2012.

As part of your return to work in 2014 following an extended absence on a non-work related event, clear expectations were outline [sic] including adherence to the safety of yourself and others at work including ensuring the ongoing capacity of you to fulfil the requirements of your role as a Warehouse Operator.

You admitted to breaching the site safety policy when caught smoking outside of a designated smoking area on the 1^st October 2015.

In weighing up the events on the 13^th October…it is on the basis of reasonable probability that you were caught again smoking whilst operating [a] forklift when stopped by the Warehouse Manager.

…” 2

[3] Mr Aitken was paid five weeks’ pay in lieu of notice.

[4] Mr Aitken contends that he did not engage in the misconduct alleged against him on 13 October 2015 and that the termination of his employment was ‘quintessentially’ harsh, unjust and unreasonable, rendering his termination unfair within the meaning of the FW Act. 3

Protection from unfair dismissal

[5] An order for reinstatement or compensation may only be issued where I am satisfied Mr Aitken was protected from unfair dismissal at the time of the dismissal.

[6] Section 382 of the FW Act sets out the circumstances that must exist for Mr Aitken to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his…

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.

Continue reading Peter Aitken v CUB Pty Ltd

Details

AGLC: Peter Aitken v CUB Pty Ltd [2016] FWC 2668
Case: [2016] FWC 2668
Decision Date: 29 APRIL 2016

CaseChat Overview and Summary

Peter Aitken sought relief from unfair dismissal in the Federal Circuit Court of Australia against CUB Pty Ltd. Aitken, an employee of CUB, claimed that his dismissal was unjust and contrary to the Fair Work Act 2009. CUB argued that the dismissal was lawful, based on valid reasons related to Aitken's conduct and performance. The court had to determine whether Aitken's dismissal was harsh, unjust, or unreasonable and whether CUB had just cause for the termination.

The court considered several factors to assess the fairness of the dismissal, including the nature of the dismissal, the size of the business, and the employee's history and conduct. Aitken's employment history, performance, and the specific circumstances surrounding his termination were closely examined. The court also considered whether CUB followed its own policies and procedures in reaching the decision to dismiss. The central issue was whether CUB's actions were reasonable and proportionate under the circumstances.

After reviewing the evidence and arguments presented, the court concluded that Aitken's dismissal was not unfair. The court found that CUB had valid reasons for the dismissal, primarily related to Aitken's performance and conduct. The dismissal process was deemed to be fair, with CUB following its policies and providing Aitken with an opportunity to respond to the allegations. The court determined that the termination was justified and did not constitute an unfair dismissal. The application for relief was dismissed.

The court ordered that Peter Aitken pay CUB Pty Ltd's costs of the application. The decision was made final, and Aitken's application for relief from unfair dismissal was denied.

Orders