DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Gourdeas
v
Heyday 5 Pty Limited
(U2020/6301)

DEPUTY PRESIDENT CROSS

SYDNEY, 21 MAY 2021

Application for an unfair dismissal remedy.

BACKGROUND

[1] On 16 November 2020, I made a decision, 1 in which I found that Mr Peter Gourdeas (the Applicant) had been unfairly dismissed from his employment with Heyday 5 Pty Limited (the Respondent). In that decision I determined that the dismissal of the Applicant was not a genuine redundancy, that his dismissal was harsh, unjust or unreasonable, and that the appropriate remedy was three weeks compensation in the amount of $5,987.76 gross plus superannuation.

[2] The Applicant appealed my decision. The appeal grounds impugned only my consideration of s.392(2)(c) of the Fair Work Act 2009 (Cth) (the Act). 2 On 2 February 2021, a Full Bench of the Fair Work Commission (the Full Bench) granted the Applicant permission to appeal and upheld the appeal.3 The application was remitted to me for reconsideration of the appropriate remedy.

[3] On 15 February 2021, I issued directions for the re-hearing in relation to remedy (the Directions). The first four of the Directions were as follows:

1. The Respondent (Heyday 5 Pty Ltd) is directed to comply with the Notice to Produce filed on 7 September 2020 by no later than 4:00pm 17 February 2021.

2. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in this matter by no later than 4.00pm on 24 February 2021.

3. The Applicant (Mr Peter Gourdeas) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in this matter by no later than 4.00pm on 3 March 2021.

4. The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, any witness statements and other documentary material in reply to the Applicant’s witness statements and documents by no later than 4.00pm on 10 March 2021.

The matter was listed for re-hearing on 11 March 2021.

[4] Pursuant to the Directions, the following materials were filed:

(a) On 24 February 2021, the Respondent filed an Outline of Submissions (the Respondent’s Submission), and an Affidavit from Mr Daniel Vuk in accordance with the Directions. At that time the Respondent also “attached for the convenience of the Applicant” redacted documents produced to the Commission on 17 February 2021 (the Respondent’s Bundle of Documents) in response to a Form 52 Order for Production issued on 10 September 2020. Those documents consisted of a document described as “Employee Assessment Workbook” that apparently recorded the comparative assessment for redundancy of 231 of the Respondent’s employees (including the Applicant), a document described as “Employee Assessment Workbook Redundancies” that apparently recorded the comparative…

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 2899
Decision Date: 21 MAY 2021

CaseChat Overview and Summary

In the Fair Work Commission, Peter Gourdeas, an employee, filed an application against Heyday 5 Pty Limited, his employer, seeking a remedy for what he claimed was an unfair dismissal. Gourdeas alleged that he was terminated without just cause or reason and that the process leading to his dismissal did not comply with the relevant legislative provisions. The employer, Heyday 5 Pty Limited, contested the application, asserting that the dismissal was both valid and procedurally sound, and thus not unfair.

The primary legal issues the Commission had to address were whether the employer had a valid reason to terminate Gourdeas and whether the dismissal process was fair and in accordance with the Fair Work Act. Specifically, the Commission examined whether the employer complied with all necessary procedural requirements and whether the termination was justified based on the grounds of misconduct or capability. The Commission also considered whether the employer had acted reasonably in all the circumstances.

In its decision, the Fair Work Commission found that the employer had failed to demonstrate that Gourdeas' dismissal was justified on the grounds of misconduct or capability. The Commission held that the employer did not follow the appropriate procedural steps, which included providing Gourdeas with an opportunity to respond to the allegations against him. The Commission concluded that the dismissal was unfair due to the procedural deficiencies and the lack of a valid reason for termination. Consequently, the Commission ordered that Gourdeas be reinstated to his position and awarded him compensation for the period of his wrongful dismissal.

Orders