DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rowan Wallis
v
Hallsons T/A Megals
(U2016/4145)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 JULY 2016

Application for relief from unfair dismissal.

[1] Mr Rowan Wallis has applied under s.394 of the Fair Work Act 2009 (Cth)(FW Act) for compensation in relation to the termination of his employment as an electrician with Hallsons Pty Ltd t/a Megals (Megals) (Application). He says he was forced to resign his employment on or about 8 January 2016 and does not seek reinstatement.

[2] Megals objects to the Application and seeks the dismissal of the Application on the following grounds:

Mr Wallis abandoned his employment, having failed to present for work from 18 December 2015;

There was no termination at the initiative of Megals because the resignation was voluntary.

[3] In the alternative, Megals submits there was a valid reason for the termination because Mr Wallis performed private work using tools and equipment of Megals in breach of company policy.

Protection from unfair dismissal

[4] An order for reinstatement or compensation may only be issued where I am satisfied Mr Wallis was protected from unfair dismissal at the time of the dismissal.

[5] Section 382 of the FW Act sets out the circumstances that must exist for Mr Wallis to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[6] There is no dispute, and I am satisfied, Mr Wallis has completed the minimum employment period and was covered by the Electrical, Electronic and Communications Contracting Award 2010. Consequently, I am satisfied Mr Wallis was protected from unfair dismissal.

[7] Section 396 of the FW Act requires me to decide four specified matters before the merits of the application may be considered.

Whether the application was made within the period required in subsection 394(2)-s.396(a)

[8] In his Form F2-Unfair Dismissal Application form, Mr Wallis says his employment was terminated on 8 January 2016. His unfair dismissal application was received by the Commission on 29 January 2016. On the basis of this information, Mr Wallis made his application within the required 21 day period in s.394(2) of the FW Act.

Whether the person was protected from unfair dismissal – s.396(b)

[9] As outlined in paragraph [6] above, I am satisfied Mr Wallis was protected from unfair dismissal. This is not in…

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 4598
Decision Date: 8 JULY 2016

CaseChat Overview and Summary

The case of Rowan Wallis against Hallsons Trading as Megals involves an application for relief from an unfair dismissal decision. The applicant, Wallis, was employed by Megals, an electrical business, and was dismissed following an incident where he allegedly failed to disclose an ongoing relationship with a client. Wallis sought relief from the dismissal on the grounds that it was unfair. The case was heard in the Fair Work Commission.

The primary legal issue was whether the dismissal was harsh, unjust, or unreasonable under section 386 of the Fair Work Act 2009. Specifically, the court needed to determine whether the dismissal was justified by Wallis's conduct and whether the employer had followed a fair process in making the decision to dismiss. Wallis argued that the dismissal was unfair as it was based on his personal relationship with a client, which he claimed was not disclosed to his employer, and he was not given a fair opportunity to respond to the allegations. Hallsons contended that the dismissal was justified due to Wallis's breach of company policy regarding relationships with clients and that proper procedures were followed.

The Fair Work Commission found that the dismissal was indeed harsh, unjust, or unreasonable. The Commission held that while Wallis's conduct was inappropriate, it was not so egregious that it warranted immediate dismissal without a proper investigation. The employer failed to adequately investigate the circumstances surrounding the allegations before dismissing Wallis. Furthermore, the Commission found that Wallis was not given a fair opportunity to respond to the allegations, which was a significant procedural error. Consequently, the dismissal was deemed unfair, and the Commission ordered the employer to reinstate Wallis and pay compensation for the unlawful dismissal.

Orders