Reuben Difesa v Woolworths Group Limited - [2022] FWC 2701

[2022] FWC 2701

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Reuben Difesa
v

Woolworths Group Limited

(U2022/3915)

DEPUTY PRESIDENT BELL

MELBOURNE, 10 OCTOBER 2022

Application for an unfair dismissal remedy – application dismissed.

On 3 April 2022, Mr Reuben Difesa (Applicant) made an application (the Application) to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the FWAct). The Applicant alleges he was unfairly dismissed by Woolworths Group Limited (Respondent) on 13 March 2022. The Respondent agrees the Applicant was dismissed on 13 March 2022 but denies the dismissal was unfair.

The Applicant’s employment was not terminated because of poor conduct or performance. Rather, the Respondent stated that the Applicant was unable to perform the inherent requirements of his job, as he was unable to attend the workplace as a consequence of Victorian public health orders that applied to the Respondent, which prohibited it from permitting the Applicant to work outside his place of residence without proof of vaccination against COVID-19. The Applicant contends his dismissal was unfair, which I must assess against the requirements of the FW Act.

The Applicant represented himself at the hearing. The Respondent was represented by Mr A. Denton of counsel, instructed by Minter Ellison, with permission to be represented having previously been granted.

Section 390 of the FW Act provides that the Commission may order a remedy if satisfied that the Applicant was “protected from unfair dismissal” at the time of being “dismissed”, and that the Applicant has been unfairly dismissed.

It was not in dispute that the Applicant was “protected from unfair dismissal”, in that he had completed the minimum employment period and his income was below the high income threshold. In determining whether the Applicant was “unfairly dismissed”, it was also not in dispute that the Applicant had been “dismissed”, nor that the Respondent was not a business to whom the Small Business Fair Dismissal Code applied, nor that the dismissal was one of genuine redundancy. It was also not in dispute, and I am therefore satisfied, that the application was made within the 21-day period required in subsection 394(2).

The critical issue in dispute was whether the dismissal was “harsh, unjust or unreasonable”.

The Applicant gave evidence on his own behalf. He filed a witness statement and more extensive documentary material. He also filed a statement of Sonia Gelsomino, who was not required for cross-examination. The Respondent called Ms Samantha Johnson, Head of Employee Relations for Woolworths Group, who filed a witness statement and documentary evidence. Each party filed written submissions. After taking into account the views of the parties and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).

Factual background and findings

The Respondent is one of Australia’s most well-known companies, which includes the operation…

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 Reuben Difesa v Woolworths Group Limited

Details

AGLC: Reuben Difesa v Woolworths Group Limited [2022] FWC 2701
Case: [2022] FWC 2701
Decision Date: 10 OCTOBER 2022

CaseChat Overview and Summary

The case of Reuben Difesa v Woolworths Group Limited was heard by the Fair Work Commission, with Deputy President Bell presiding. Mr Difesa had applied for relief from unfair dismissal under the Fair Work Act 2009. He alleged he was unfairly dismissed by Woolworths Group Limited on 13 March 2022, while the employer agreed with the date of dismissal but denied it was unfair. The Fair Work Commission was required to determine whether Mr Difesa's dismissal was harsh, unjust, or unreasonable.

The central issue was whether the dismissal was justified due to Mr Difesa's inability to perform the inherent requirements of his job, as a result of Victorian public health orders that prohibited Woolworths Group Limited from permitting him to work outside his place of residence without proof of vaccination against COVID-19. The Commission found that the dismissal was not harsh, unjust, or unreasonable, as the employer provided a valid reason for dismissal, notified Mr Difesa of the reason, and allowed him an opportunity to respond. Additionally, the size of the employer's enterprise and the absence of dedicated human resource management specialists or expertise did not impact the procedures followed in effecting the dismissal.

The Fair Work Commission concluded that Mr Difesa's dismissal was not unfair, as the employer had a valid reason to dismiss him due to the public health orders and the inherent requirements of his role. The employer also provided procedural fairness to Mr Difesa, and no other matters were found to render the dismissal unfair. As a result, the application for relief from unfair dismissal was dismissed.

Orders