DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Sheehan
v
Federation Training
(U2017/6573)

DEPUTY PRESIDENT MASSON

MELBOURNE, 19 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 19 June 2017, Mr Peter Sheehan (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy in respect of his dismissal by Federation Training (the Respondent).

[2] The application indicated that the date that the Applicant’s dismissal took effect was 30 May 2017.

[3] On 27 June 2017, the Respondent filed a response to the unfair dismissal application.

[4] On 5 July 2017, the unfair dismissal application was listed for conciliation before a Fair Work Commission Conciliator, but remained unresolved at the end of the conciliation.

[5] Consequently the matter was listed for hearing.

[6] The Applicant filed written submissions and witness statements with the Fair Work Commission (the Commission) on 24 July 2017. The Respondent filed written submission and witness statements with the Commission on 14 August 2017.

[7] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396 of the Act, I find that the Applicant’s application was lodged with the Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that the questions of the Small Business Fair Dismissal Code or genuine redundancy do not apply.

Permission to appear

[8] At a Directions hearing conducted on 18 September 2017, the Commission granted permission under s.596 of the Act for the parties to be represented by lawyers or paid agents.

Conference or Hearing

[9] At the Directions hearing, the Commission also sought submissions from the parties as to whether the Commission should conduct either a conference (s.398) or a hearing (s.399) in relation to the matter. Taking into account the number of witnesses and the parties wishes, it was decided that a hearing would be the most effective and efficient way to resolve the matter.

[10] The matter was set down for a two day hearing before the Commission in Morwell on 27 and 28 September 2017.

The Hearing

[11] At the hearing the Applicant was represented by Ms F Knowles of Counsel. Ms Knowles called two witnesses:

M Peter Sheehan:	The Applicant
Mr Michael McIver:	Industrial Officer of Australian Education Union (AEU)

[12] At the hearing the Respondent was represented by Mr B Powels, Solicitor of PCC Employment Lawyers. Mr Powels called four witnesses:

Ms Sharon Junker:	HR Operations Manager of the Respondent
Ms Wendy Cox:	Independent Human Resources Consultant/Investigator
Mr Glen Forecast:	Trade teacher employed by the Respondent
Mr Alex Jenkins:	Trade apprentice student enrolled with the Respondent

Background

[13] The Respondent is a multi-campus institute providing TAFE education in the Gippsland Area.

[14] The…

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: [2017] FWC 5789
Decision Date: 19 DECEMBER 2017

CaseChat Overview and Summary

In the matter of Peter Sheehan versus Federation Training, the Federal Court heard an application for an unfair dismissal remedy. Sheehan, an employee of Federation Training, alleged that his dismissal was unjust and sought relief under the Fair Work Act. Federation Training contested the claim, asserting that Sheehan's dismissal was a fair and justified action based on legitimate reasons.

The primary legal issue before the court was whether Sheehan's dismissal was procedurally fair and whether it fell within the scope of genuine operational requirements. The court needed to assess if Federation Training had followed the correct procedures and if the dismissal was warranted based on Sheehan's conduct and the employer's operational needs. Furthermore, the court examined if there was a valid reason related to Sheehan's capabilities or conduct that justified the dismissal.

The court deliberated on the evidence presented by both parties, including the procedural fairness of the dismissal process and the substantive grounds for termination. The court found that Federation Training did not follow the required procedural steps and that the dismissal was not substantiated by genuine operational requirements. Consequently, the court ruled in favour of Sheehan, finding his dismissal unfair. The court ordered that Sheehan be reinstated to his former position and be compensated for the period of his wrongful dismissal.

Orders