Roy Sabag v D&T Hydraulics and Engineering Pty Ltd - [2024] FWC 3336

[2024] FWC 3336

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Roy Sabag
v

D&T Hydraulics and Engineering Pty Ltd

(U2024/7256)

DEPUTY PRESIDENT LAKE

BRISBANE, 3 DECEMBER 2024

Application for an unfair dismissal remedy – serious misconduct – summary dismissal – dismissal harsh and unjust – remedy granted – compensation awarded.

Mr Roy Sabag (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating that he was unfairly dismissed from his employment with D&T Hydraulics and Engineering Pty Ltd (the Respondent).

A conciliation was held on 13 August 2024 and the matter was not resolved. The matter was listed for an in-person hearing on 18 September 2024. The Applicant was self-represented. The Respondent was represented by Mr Craig Joy from Craig Joy Workplace Consulting. Leave was granted for the Respondent to be represented under s.596 of the Act, as the matter is factually complex.

Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act, earned less than the high-income threshold, is a person protected from unfair dismissal, that his dismissal was not a case of genuine redundancy, and the Small Business Fair Dismissal Code is not applicable as a business with more than 15 employees.

Background

The Applicant commenced work for the Respondent on 10 August 2023 as a Mechanical Engineer. [1]

The Applicant specialises in 3D modelling and has a technique for 3D automation and 3D modelling called the “Roy Method”.[2] The Applicant had sent the Engineering Manager of the Respondent, Mr Kurt Schmidt, a demo video showing his technique via LinkedIn prior to being hired.[3]

The Respondent uses 3D automation and modelling as part of the process for developing cylinders. The Respondent is in the business of repairing and manufacturing hydraulic cylinders.[4]

The Respondent contends that the Applicant was hired so that he could develop a system for the Respondent to use in modelling and teach his method to other staff in the Engineering Department.[5]

The Applicant contends that he was never told to teach others his “Roy Method”.[6] The Applicant also stated in his submissions: “The applicant has already demonstrated and taught his system to his manager Kurt for the purpose of approving it. Kurt fully understood it before approving it and even said ‘it is just Sketch Blocks on a Master Sketch.’”[7]

The Respondent denies that the Applicant was never told to teach others his method. The Respondent points to minutes of meetings with the Engineering team which note that once the Applicant had finished working on the system, he would teach it to others.[8] I accept the Respondent’s evidence that the Applicant knew he would eventually be asked to teach others to use the model.

On 10 October 2023, following the 7 October 2023 attack in Israel, the Applicant…

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: [2024] FWC 3336
Decision Date: 3 DECEMBER 2024

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for unfair dismissal brought by Roy Sabag against D&T Hydraulics and Engineering Pty Ltd. Sabag, a mechanical engineer, was dismissed on 3 June 2024. He sought to have his dismissal overturned and to be compensated for the termination. The Commission had to determine whether the dismissal was harsh, unjust or unreasonable, and if so, whether to grant a remedy. The Respondent alleged that Sabag's dismissal was justified on the grounds of serious misconduct, specifically that Sabag caused a serious and imminent risk to the health and safety of others and refused to follow a lawful and reasonable instruction. Sabag denied these allegations and argued that the dismissal was unfair.

The Commission considered whether the dismissal was for a valid reason related to Sabag's capacity or conduct. The Respondent claimed that Sabag's behaviour during a meeting on 29 May 2024, where he was aggressive and questioned the qualifications of his colleagues, posed a serious and imminent risk to health and safety. The Commission found that while Sabag's conduct was unprofessional and confrontational, it did not amount to a serious and imminent risk to health and safety. The second reason for dismissal was that Sabag refused to move his desk to a "war room" as instructed by his manager, Kurt Schmidt. The Commission accepted that this refusal, coupled with other issues, provided a valid reason for dismissal.

The Commission also examined whether Sabag was notified of the reason for dismissal and given an opportunity to respond. Sabag was summarily dismissed and not given a chance to respond, which the Commission found weighed in favour of the dismissal being harsh, unjust or unreasonable. Additionally, the Commission considered the proportionality of the summary dismissal, noting that Sabag had not been given a proper process to reconsider his conduct. Given the breakdown in the relationship and the Applicant's conduct, the Commission found the dismissal to be harsh and unjust but not unreasonable. Therefore, the Applicant was entitled to a remedy for unfair dismissal.

In determining the remedy, the Commission considered the appropriate compensation for Sabag. The Commission calculated that Sabag would have been dismissed within 12 weeks of his termination date, resulting in a maximum compensation of $30,000.00 gross. After accounting for contingencies and any income earned post-dismissal, the Commission ordered that the Respondent pay Sabag $20,000.00 gross plus superannuation within 21 days of the order. The Commission left the issue of taxation to be determined by the Respondent.

Orders