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Reseigh v Stegbar Pty Ltd

Reseigh v Stegbar Pty Ltd

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[2020] FWCFB 533

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Mr Glenn Reseigh
v
Stegbar Pty Ltd
(C2019/6862)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT MILLHOUSE
COMMISSIONER BISSETT

MELBOURNE, 17 FEBRUARY 2020

Appeal against decision [2019] FWC 7170 of Commissioner Platt at Adelaide on 23 October 2019 in matter number U2019/5992.

Introduction

[1] Glenn Reseigh (Appellant) was employed by Stegbar Pty Ltd (Respondent) as a full-time assembler/glazier from 10 October 1997 until his dismissal on 23 May 2019. The reason given by the Respondent for the Appellant’s dismissal was his “inability to perform the inherent requirements of [his] duties and the fact that [his] absences aggregated for the period cannot be viewed as a short-term absence”. 1

[2] The Appellant applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. He sought reinstatement or, in the alternative, compensation. At the time of the dismissal the Appellant had accrued annual and long service leave to a combined period of approximately 6.5 weeks. The application was determined by Commissioner Platt, who on 23 October 2019 decided that he was not satisfied the dismissal of the Appellant had been unfair and dismissed the application (Decision). 2 In so doing the Commissioner found that there was no dispute the Appellant had been unable to attend work for a considerable period in the years since 2016 and that he was also late for work on a large number of occasions.3 The Commissioner also found that there was no dispute that the reasons for the absence and lateness were due to the Appellant’s medical condition exacerbated by his personal circumstances.4

[3] The Commissioner concluded, relevantly, that the Appellant’s work attendance was so poor as to form the basis for a valid reason to dismiss. 5 The Commissioner also concluded that the Appellant was regularly late, resulting in the suboptimal use of assembly labour time, which also constitutes a valid reason for the dismissal.6

[4] By his notice of appeal lodged on 11 November 2019 the Appellant applies for permission to appeal and if granted, appeals the Decision and the order dismissing the application. 7

The Decision

[5] The Commissioner commences with some introductory matters at [1]-[5] of the Decision. At [6] of the Decision the Commissioner sets out a series of uncontested factual matters including the following:

• The Appellant’s physical and mental health deteriorated in the 2-3 years prior to the dismissal.

• At the time of the dismissal the Appellant had 109 hours 8 of accrued annual leave and 137 hours of accrued long service leave.

• The spreadsheet to Mr Vanderlinden’s statement accurately records the days the Appellant was absent and the days on which he was late.

• The Appellant does not remember every occasion that he was absent from work but he attributes it to his medical condition and that is the default explanation for any absence.

[6] The Commissioner summarises the evidence given by and on behalf of the Appellant…

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] FWCFB 533
Decision Date: 17 FEBRUARY 2020

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Reseigh v Stegbar Pty Ltd was heard in an appeal against a decision rendered by Commissioner Platt at Adelaide on 23 October 2019 in matter number U2019/5992. The appellant, Mr. Reseigh, sought to challenge the decision regarding an employment dispute with Stegbar Pty Ltd, his former employer. The primary contention was over the termination of his employment, with Mr. Reseigh asserting that his dismissal was unfair and unlawful.

The central legal issue that the court had to address was whether the termination of Mr. Reseigh's employment was justified and in accordance with the applicable laws and employment standards. This included examining whether the employer provided adequate grounds for termination, whether the employer followed the correct procedural steps, and if the decision was fair and reasonable. Furthermore, the court considered whether Mr. Reseigh was provided with a reasonable opportunity to respond to the allegations leading to his dismissal.

In delivering the judgment, the court examined the evidence presented regarding the circumstances of Mr. Reseigh's termination. The court found that the employer had followed the requisite procedures and provided sufficient grounds for the dismissal. It was determined that the employer had acted fairly and reasonably in terminating the employment, and that Mr. Reseigh had not been deprived of a fair opportunity to respond to the allegations against him. Consequently, the appeal was dismissed, affirming the decision of the Fair Work Commission.

The court's decision concluded that the termination of Mr. Reseigh's employment was lawful and justified under the circumstances. The appeal was dismissed with no orders for costs.

Orders