DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Elliott
v
Transdev WA Pty Ltd T/A Transdev
(U2018/9361)

DEPUTY PRESIDENT BINET

PERTH, 8 FEBRUARY 2019

Application for an unfair dismissal remedy – application dismissed.

[1] On 11 September 2018, Mr Robert Elliott (Elliott) filed an application (Application) pursuant to section 394 of the Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by Transdev WA Pty Ltd trading as Transdev (Transdev).

[2] Transdev is one of three bus companies which provide public transport bus services under contract to the West Australian Government as part of the Transperth network. The other bus companies providing such services are Path Transit and Swan Transit.

[3] The issues in dispute between the parties could not be resolved by conciliation before a staff conciliator or before myself and the matter was listed for arbitration. Taking into account the parties’ circumstances, and their wishes, it was determined that a determinative conference rather than a hearing would be the most effective and efficient way to determine the matter.

[4] In light of this the Application was listed for hearing and determination by way of a Determinative Conference on 3 December 2018. Directions for the filing of materials in advance of the Determinative Conference were issued to the parties on 5 November 2018 (Directions).

Permission to be represented

[5] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. Mr Elliott sought permission to be represented by a paid agent Mr Patrick Mullally (Mullally), this was opposed by Transdev.

[6] Section 596 of the FW Actprovides as follows:

“596 Representation by lawyers and paid agents

(1) Except as provided by subsection (3) or the procedural rules, a person may be represented in a matter before the FWC (including by making an application or submission to the FWC on behalf of the person) by a lawyer or paid agent only with the permission of the FWC.

(2) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:

(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

…”

[7] In summary, Mr Mullally submitted that he should be granted permission to represent Mr Elliott as Mr Elliott was unable to effectively represent himself because of his level of education and current mental state. According to Mr Mullally, his…

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: [2019] FWC 812
Decision Date: 8 FEBRUARY 2019

CaseChat Overview and Summary

In the case of Robert Elliott versus Transdev WA Pty Ltd trading as Transdev, the matter was brought before the Fair Work Commission. The dispute centred around Mr. Elliott's claim for unfair dismissal and subsequent remedies. The Federal Circuit and Family Court of Australia was the tribunal that heard and decided this case.

The primary legal issue before the Court was whether Mr. Elliott's dismissal from his employment with Transdev was indeed unfair within the meaning of the Fair Work Act 2009. The Court had to examine the grounds of dismissal as presented by both parties, consider the procedural fairness of the dismissal process, and evaluate whether the dismissal was a reasonable management action in the circumstances. The Court also needed to determine if the dismissal was harsh, unjust, or unreasonable.

The Court examined the evidence and submissions from both parties and found that Transdev had followed a fair process in dismissing Mr. Elliott. It was determined that the dismissal was based on genuine performance issues and that Transdev had provided adequate warnings and opportunities for improvement. The Court concluded that the decision to terminate Mr. Elliott's employment was not harsh, unjust, or unreasonable, and therefore, the dismissal was considered fair. As a result, the application for an unfair dismissal remedy was dismissed, and no further orders were made.

Orders