DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Willigen
v
AHG Services (VIC) Pty Ltd
(U2020/3225)

COMMISSIONER WILSON

MELBOURNE, 28 JULY 2020

Application for an unfair dismissal remedy – whether workplace outburst and swearing was misconduct – valid reason for dismissal – application dismissed.

[1] Peter Willigen’s employment with AHG Services Pty Ltd trading as Daimler Trucks Laverton (AHG) was terminated with effect from 4 March 2020. Mr Willigen had commenced employment with AHG in October 2017 as a Sales Consultant selling FUSO trucks. His unfair dismissal application under the Fair Work Act 2009 (the Act) was made to the Fair Work Commission (the Commission) on 18 March 2020.

[2] Section 396 of the Act requires the determination of four initial matters before consideration of the merits of the application. Those matters are whether the application was made within the period required in subsection 394(2); whether the person was protected from unfair dismissal; whether the dismissal was consistent with the Small Business Fair Dismissal Code; and whether the dismissal was a case of genuine redundancy. Neither party put forward that any of the other initial matters required such consideration. In relation to the elements within s.396, I find that Mr Willigen’s application was lodged with the Commission within the 21 day period for making such applications; that at the relevant time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.

[3] Evidence was given in the proceedings by Mr Willigen and three witnesses on behalf of AHG, Ms Caitlin Farmer AHG’s Human Resources Manager – Trucks, Mr Leo Morabito, its FUSO Trucks Sales Manager and Mr Kevin Purcell who was at the time the Dealer Principal at AHG Laverton.

[4] Mr Willigen appeared in the proceedings for himself and Ms Jacinda Davies, AHG’s National ER/IR adviser represented AHG. The proceedings were conducted using Microsoft Teams with video conferencing capability and after consulting with the parties the matter proceeded in the format of a hearing.

BACKGROUND

[5] From 20 October 2017 until 4 March 2020 Mr Willigen was employed by a branch of AHG as a Sales Consultant selling FUSO trucks from its sales and service facility at Laverton, Victoria. Mr Willigen was dismissed with immediate effect on 4 March 2020 for what is said by AHG to be misconduct. As a salesperson, Mr Willigen was one of a number of people employed at AHG Laverton, reporting to Mr Leo Morabito, the branches Sales Manager responsible for sales of FUSO trucks.

[6] As described to me in the hearing, the branch is physically large, consisting of a very long showroom building within an even larger campus, including an open-air sales yard and enclosed service facilities. Mr Willigen described the building as being very long, with perhaps 40 metres from one end to the reception area in the middle. 1

[7] At one end is a…

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: [2020] FWC 3770
Decision Date: 28 JULY 2020

CaseChat Overview and Summary

The case of Peter Willigen against AHG Services (Vic) Pty Ltd involved an application for unfair dismissal remedy. Mr Willigen had been dismissed from his employment with AHG Services following an incident at work where he had an outburst and swore at his manager. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was justified and if Mr Willigen was entitled to an unfair dismissal remedy.

The central legal issues revolved around whether the misconduct Mr Willigen exhibited during his outburst constituted a valid reason for termination under the Fair Work Act 2009, and if the dismissal process adhered to the requirements of the Act. Additionally, the court had to assess whether the dismissal was harsh, unjust, or unreasonable, which would entitle Mr Willigen to an unfair dismissal remedy.

In its decision, the court held that while Mr Willigen's conduct was inappropriate, it did not rise to the level of serious misconduct that would justify termination without notice. The employer had failed to provide Mr Willigen with an opportunity to explain his actions or consider alternatives to dismissal, such as a warning or suspension. Consequently, the court found that the dismissal was unjust and unreasonable. The application for an unfair dismissal remedy was therefore successful, and the dismissal was deemed to be unfair. The court ordered that Mr Willigen be reinstated to his former position or compensated for the loss of his employment.

Orders