Peter David Bostock v Austmont Pty Ltd - [2022] FWC 1185

[2022] FWC 1185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Peter David Bostock
v

Austmont Pty Ltd

(U2022/2707)

COMMISSIONER MATHESON

SYDNEY, 16 MAY 2022

Application for an unfair dismissal remedy – Applicant unable to perform inherent requirements of his role – valid reason for dismissal – no notification of reason for dismissal – no opportunity to respond to reason for dismissal – procedural fairness considerations – length of service – Applicant unfairly dismissed – reinstatement inappropriate – compensation ordered.

On 3 March 2022, Peter David Bostock (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Austmont Pty Ltd (Respondent). The Applicant seeks financial compensation.

When can the Commission order a remedy for unfair dismissal?

Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i)a modern award covers the person;

(ii)an enterprise agreement applies to the person in relation to the employment;

(iii)the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Background

The uncontested factual background to the matter is as follows:

· The Applicant began working for the Respondent on 8 March 1989.

· In March 2021, the Respondent advised the Applicant that the Respondent had received an anonymous complaint against the Applicant which would be investigated. The Respondent found the complaint was not substantiated, however the parties do not agree upon the date that the Applicant was advised of this.

· The Applicant became unwell and went on leave from…

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 David Bostock v Austmont Pty Ltd

Details

AGLC: Peter David Bostock v Austmont Pty Ltd [2022] FWC 1185
Case: [2022] FWC 1185
Decision Date: 16 MAY 2022

CaseChat Overview and Summary

The case of Bostock v Austmont Pty Ltd was heard by Commissioner Matheson of the Fair Work Commission. The applicant, Mr Bostock, alleged that he had been unfairly dismissed by the respondent, Austmont Pty Ltd. He claimed that his dismissal was due to his inability to perform the inherent requirements of his role as Factory Foreman, a result of mental illness he claims was caused by the respondent's actions. The respondent denied these claims and maintained that it had a valid reason for dismissing Mr Bostock. The Commission was required to determine if Mr Bostock was protected from unfair dismissal and whether he had been unfairly dismissed. The Commission found that Mr Bostock was protected from unfair dismissal as he had worked for the respondent for over 33 years and his income was below the high income threshold. The Commission also found that the dismissal was unfair because Mr Bostock was not notified of the reason for his dismissal prior to the decision being made and was not given an opportunity to respond. The Commission ordered compensation for Mr Bostock in the amount of $470.72, less tax as required by law, to be paid by the respondent within 14 days of the decision.

Orders