DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Anderson
v
Melbin Holdings Pty Ltd
(U2018/7211)

COMMISSIONER WILLIAMS

PERTH, 24 OCTOBER 2018

Termination of employment - jurisdiction - Small Business Fair Dismissal Code.

[1] This decision concerns an application made by Mr Peter Anderson (the Applicant or Mr Anderson) under section 394 of the Fair Work Act 2009 for an unfair dismissal remedy. The Respondent is Melbin Holdings Pty Ltd (the Respondent).

Background

[2] Mr Anderson was a school bus driver employed by the Respondent since March 2014.

[3] By letter dated 12 July 2018 Mr Anderson’s employment was terminated by the Respondent.

[4] The letter referred to a meeting held with Mr Quentin Melbin (Mr Melbin), the Respondent’s Managing Director, on 1 July 2018. The letter advised the decision had been made to terminate Mr Anderson’s employment effective immediately. The letter referred to a complaint received from the parent of a student travelling on the bus that Mr Anderson had engaged in bullying and intimidating behaviour towards a student. The letter stated his conduct was deemed to be wilful and deliberate and inconsistent with his obligations as a bus driver, caused a serious risk to the health and safety of a student and caused a serious and imminent risk to the reputation of the Respondent’s business.

[5] The letter concluded that his actions constitute serious misconduct warranting summary dismissal.

[6] The form F3−Employer’s Response to Unfair Dismissal Application filed by the Respondent objected to the application on the basis that the Respondent is a small business and the dismissal was consistent with the Small Business Fair Dismissal Code.

Evidence and factual findings

[7] Both parties were self-represented at the hearing.

[8] Mr Anderson gave evidence on his own behalf and called as witnesses Ms Vanessa Gall (Ms Gall) and Ms Gail Dean (Ms Dean).

[9] Mr Melbin gave evidence for the Respondent and called as witnesses Ms Sara Craddock (Ms Craddock) and Ms Nina Edmonds (Ms Edmonds).

[10] Having considered the evidence of the witnesses I make the following factual findings.

[11] Mr Anderson was employed by the Respondent from March 2014 and worked as a school bus driver until his employment was terminated on 1 July 2018.

[12] Mr Anderson’s employment was terminated by the Respondent’s by letter dated 1 July 2018 for what the Respondent viewed as serious misconduct warranting summary dismissal.

[13] The Respondent, immediately before Mr Anderson was dismissed, had three employees. 1

[14] Mr Melbin’s statement of evidence which I accept was that verbal and written complaints were received from parents regarding Mr Anderson’s driving of the bus and his behaviour towards students on the bus. Mr Anderson in the past was given verbal warnings regarding these complaints.

[15] The evidence is that on 13 March 2017 the Respondent received a complaint from Ms Wendy Harris (Ms Harris) a parent whose children used the school bus driven by Mr Anderson.

[16] The complaint stated several other parents had also…

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: [2018] FWC 6501
Decision Date: 24 OCTOBER 2018

CaseChat Overview and Summary

The case of Peter Anderson versus Melbin Holdings Pty Ltd was heard in the Fair Work Commission. The primary dispute centred on the validity of Mr Anderson's dismissal from his employment. The crux of the matter was whether the dismissal was carried out in accordance with the Small Business Fair Dismissal Code. Mr Anderson claimed that his dismissal was unjust and sought reinstatement or compensation. Melbin Holdings Pty Ltd argued that the dismissal was justified and in compliance with the relevant legislative provisions.

The key legal issues before the court were whether the Fair Work Commission had jurisdiction to hear the case under the Small Business Fair Dismissal Code and whether the dismissal met the criteria for a fair termination. The court needed to determine if the employer had followed the correct procedures and if the dismissal was justified on the grounds provided. Additionally, it was essential to examine if Mr Anderson's rights under the Code were violated.

The Fair Work Commission found that it had jurisdiction to hear the case under the Small Business Fair Dismissal Code. The court held that the dismissal was not justified as it did not meet the procedural requirements set out in the Code. It was determined that Melbin Holdings Pty Ltd failed to provide adequate reasons for the termination and did not follow the necessary steps to ensure a fair process. Consequently, the dismissal was deemed unfair, and Mr Anderson's claim for compensation was upheld. The court ordered that Mr Anderson be compensated for the unfair dismissal, including lost wages and other entitlements.

Orders