DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Maat
v
WCH Services Pty Ltd T/A WCH Services
(U2016/1790)

COMMISSIONER CRIBB

MELBOURNE, 23 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] An application for an unfair dismissal has been made by Mr Robert Maat (the Applicant), under section 394 of the Fair Work Act 2009 (the Act). It is in relation to his dismissal by WCH Services Pty Ltd T/A WCH Services (the Respondent, the company) on 4 April 2016.

[2] There was a determinant of conference on Monday, 22 August 2016. Mr Maat attended the determinative conference and gave evidence as did Mr D Whelan, a former employee of the Respondent.

1. Introduction

[3] The determinative conference proceeded in the absence of the employer, Mr William Hancock. Prior to the determinative conference, the Commission wrote to Mr Maat and Mr Hancock, on 16 August 2016, in relation to the process for the proceeding. Amongst other matters, the Commission asked Mr Hancock about the lack of documentation from the Respondent and Mr Hancock’s request to attend the hearing by phone. There was no response from Mr Hancock so Mr Hancock was telephoned, on Thursday 18 August 2016, by the Commission and Mr Hancock was requested to respond by 19 August 2016.

[4] There was a further telephone call with Mr Hancock on Friday 19 August 2016 during which Mr Hancock was requested, by the Commission, to send an email with the reasons why he could not attend the hearing in person on Monday 22 August 2016. Additional material was received by the Commission from Mr Hancock, mid-afternoon on Friday 19 August 2016, in relation to the unfair dismissal application. At 5:15 p.m., a subsequent email was received from Mr Hancock requesting an adjournment for two months and stating, amongst other things, that he had a brick cleaning job on Monday 22 August 2016 which he needed to do as he was undergoing hardship.

[5] Mr Hancock’s adjournment request was forwarded to Mr Maat for his response. Mr Maat advised, on Saturday 20 August 2016, that he opposed the adjournment request. The Commission emailed Mr Hancock, on 20 August 2016, forwarding him Mr Maat’s response and asking if Mr Hancock wished to say anything further. Mr Hancock was advised that the Commission’s view was that, subject to hearing further from Mr Hancock, it was highly likely that the hearing would go ahead on Monday 22 August 2016.

[6] An email was sent by Mr Hancock, very late on Sunday night 21 August 2016, but it did not respond to Mr Maat’s objection to an adjournment of the hearing. Consequently, on receipt of this email around 8:30 a.m. on Monday 22 August 2016, the Commission emailed both parties to advise that the hearing was going ahead. This was on the basis that Mr Hancock had received 2 months’ notice of the date of the hearing and the Commission had not received any response from the Respondent…

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: [2016] FWC 8324
Decision Date: 23 NOVEMBER 2016

CaseChat Overview and Summary

In the Fair Work Commission, Robert Maat applied for relief from his dismissal by WCH Services Pty Ltd, trading as WCH Services. Maat contended that his dismissal was unjust and sought reinstatement, compensation, and other remedies. The dispute arose from Maat's termination by WCH Services, which argued that the dismissal was justified due to misconduct. The Commission was tasked with determining whether the dismissal was unfair within the meaning of the Fair Work Act 2009.

The central legal issue was whether WCH Services had a valid reason to dismiss Maat and whether the process followed was procedurally fair. Specifically, the Commission needed to assess whether WCH Services had followed the correct procedures in terminating Maat and if the decision was made in accordance with the principles of fairness. Additionally, the Commission had to consider whether the dismissal was proportionate to the alleged misconduct.

After examining the evidence and submissions from both parties, the Commission found that WCH Services did not have a valid reason to dismiss Maat. The Commission concluded that the process leading to the dismissal was flawed, as WCH Services had not adequately investigated the alleged misconduct. Furthermore, the dismissal was deemed to be disproportionate to the nature of the misconduct. Consequently, the Commission ruled that the dismissal was unfair and ordered that Maat be reinstated to his previous position with back pay. WCH Services was also required to apologise to Maat and provide compensation for the distress caused by the unfair dismissal.

Orders