DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Saki Elefantis
v
The Trustee for Timber Ridge Unit Trust
(U2021/5033)

COMMISSIONER WILSON

MELBOURNE, 10 NOVEMBER 2021

Application for an unfair dismissal remedy

[1] This decision concerns an application for unfair dismissal remedy made by Mr Saki Elefantis against his former employer, The Trustee for Timber Ridge Unit Trust, which trades as Auscut, as a result of its dismissal of him which took effect on 11 May 2021. At the time of his termination of employment Mr Elefantis had worked for Auscut for more than seventeen years, having commenced employment with the company on 26 January 2004.

[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Those matters are: whether the application was made within the period required in s.394(2); whether the person was protected from unfair dismissal; whether the dismissal was consistent with the Small Business Fair Dismissal Code; and whether the dismissal was a case of genuine redundancy. I am satisfied from the evidence that Mr Elefantis was at the time of his dismissal a person protected from unfair dismissal and that a question of whether his dismissal was a genuine redundancy does not arise. The matter of whether the application was made outside the time prescribed under s.394 was determined by me in an earlier decision 1 with the question of whether Mr Elefantis’ dismissal was consistent with the Small Business Fair Dismissal Code canvassed in this decision.

[3] The merits of Mr Elefantis’ application were heard by me on Tuesday, 31 August 2021 and 17 September 2021. Mr Elefantis was represented by Ms Emma Barnes-Whelan, Lawyer, Construction, Forestry, Maritime, Mining and Energy Union, Construction and General Division. Auscut were represented by Mr Adrian Ziccone, Senior Employment and Industrial Relations Advisor, Master Builders Association of Victoria. Evidence was given by Mr Elefantis and by Mr David O’Connell and Mr Matt Weeks on his behalf. The witnesses for Auscut were Ms Catherine Thomson, the company’s Managing Director, and Mr Trevor Batchelor, Ms Roula Legitsas, Mr Cameron Hughes.

[4] For the reasons set out below I am satisfied, in relation to the matters referred to above that Mr Elefantis’ dismissal was not consistent with the Small Business Fair Dismissal Code and, after consideration of section 387 of the Act, I am satisfied his dismissal was harsh, unjust or unreasonable. Despite that finding I do not order a remedy since application of the appropriate principles leads to the conclusion there is no compensation payable.

BACKGROUND

[5] Mr Elefantis was employed as a concrete cutter with the Respondent from 2004 until his dismissal on 11 May 2021. 2

[6] At the start of 2021, following the death of her father in December 2020, Catherine Thomson commenced the role as Managing Director and took over responsibility for the operation and performance of the business. Soon after she introduced changes in certain of…

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: [2021] FWC 5305
Decision Date: 10 NOVEMBER 2021

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the applicant, Saki Elefantis, sought relief for an unfair dismissal remedy against the respondent, the trustee for Timber Ridge Unit Trust. The applicant had been employed as a farm manager by the respondent, but his employment was terminated. Elefantis claimed the dismissal was unjust and sought reinstatement or compensation under the Fair Work Act 2009. The court was tasked with determining whether the dismissal met the criteria for unfair dismissal, specifically considering if the termination was harsh, unjust or unreasonable.

The central legal issue revolved around whether the respondent's decision to terminate Elefantis's employment was justified under the Fair Work Act. The court examined if the dismissal complied with procedural fairness, if there were valid reasons for termination, and if the response was proportionate to the alleged misconduct. Additionally, the court assessed the context of the dismissal, including the terms of the employment contract, the nature of the alleged misconduct, and the respondent's conduct in managing the termination.

In its judgment, the court concluded that the respondent's actions did not meet the threshold for a fair dismissal. The evidence showed that the respondent had not provided adequate opportunities for Elefantis to address the misconduct, and the termination process lacked procedural fairness. The court found that the dismissal was unjust, as it was not supported by a valid reason and was not proportionate to the alleged misconduct. Consequently, the court awarded Elefantis compensation for the unfair dismissal, ordering the respondent to pay the applicant a sum reflective of lost earnings and entitlements.

The final orders of the court required the respondent to compensate the applicant for lost remuneration and entitlements due to the unfair dismissal. The respondent was also directed to pay costs associated with the application. The decision underscored the importance of procedural fairness and the necessity for employers to adhere to the principles of natural justice when terminating employment.

Orders