Sam Balkan v securecorp pty ltd T/A securecorp - [2017] FWC 5009

[2017] FWC 5009

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sam Balkan

securecorp pty ltd T/A securecorp

(U2017/4252)

Deputy President Clancy

MELBOURNE, 26 SEPTEMBER 2017

Application for an unfair dismissal remedy – valid reason – dismissal not unfair – application dismissed.

Mr Sam Balkan has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy having been dismissed from his employment with SECUREcorp Pty Ltd (Securecorp).

From 23 January 2014 until his dismissal on 7 April 2017, Mr Balkan was employed as a part-time Security Officer working at Century City Walk (CCW) Shopping Centre in Glen Waverley. Mr Balkan’s employment was terminated for serious misconduct said by Securecorp to be:

· falsification of a timesheet;

· falsification of the timesheet of a sub-contractor;

· fraudulent completion of time and attendance records on behalf of himself and another person to gain a financial advantage; and

· acting dishonestly in dealings with the sub-contractor.[1]

Securecorp also relies on post-termination findings that it says amount to serious misconduct, being Mr Balkan’s contravention of its direction that he not discuss or disclose the subject of the investigation into the abovementioned matters with other employees or any other person outside of the organisation and that he not interfere directly or indirectly with it in any way.

Section 396 – Initial matters to be considered

Section 396 of the Act requires me to decide four matters before considering the merits of Mr Balkan’s application. There is no dispute between the parties, and I am satisfied, of the four matters referred to in ss.396(a)-(d) of the Act, as follows.

First, Mr Balkan’s application was made within the 21 day period required by s.394(2) of the Act (s.396(a)).

Secondly, it is not contested and I am satisfied the sum of Mr Balkan’s annual rate of earnings is less than the high income threshold and an enterprise agreement applied to his employment. Consequently, I am satisfied that Mr Balkan was protected from unfair dismissal pursuant to s.382 of the Act (s.396(b)).

Thirdly, Securecorp is not a small business and therefore the Small Business Fair Dismissal Code does not apply (s.396(c)).

Fourthly, Mr Balkan’s dismissal was not a case of genuine redundancy (s.396(d)).

I must now consider if the dismissal of Mr Balkan by Securecorp was unfair within the meaning of the Act.

Section 385 – was Mr Balkan’s dismissal unfair?

A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

Note: For the definition of consistent with the Small…

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.

Continue reading Sam Balkan v securecorp pty ltd T/A securecorp

Details

AGLC: Sam Balkan v securecorp pty ltd T/A securecorp [2017] FWC 5009
Case: [2017] FWC 5009
Decision Date: 26 SEPTEMBER 2017

CaseChat Overview and Summary

The applicant, Sam Balkan, filed an application against Securecorp Pty Ltd, trading as Securecorp, seeking a remedy for unfair dismissal. The dispute arose from the termination of Mr. Balkan’s employment by Securecorp. The case was heard in the Fair Work Commission. The primary legal issue before the court was whether the dismissal of Mr. Balkan was unfair within the meaning of the Fair Work Act 2009. Specifically, the court needed to determine if Securecorp had a valid reason for the termination and if the process followed was procedurally fair.

The court examined the evidence presented by both parties, including the reasons for dismissal provided by Securecorp and Mr. Balkan's response. Securecorp argued that the dismissal was due to a genuine redundancy, as the position Mr. Balkan held was no longer required. They provided evidence of the business restructuring that led to the redundancy. Mr. Balkan, on the other hand, contested the validity of the reason and claimed procedural unfairness. He argued that he was not adequately informed about the reasons for his dismissal and was not given an opportunity to respond.

After evaluating the evidence, the court concluded that Securecorp had a valid reason for the dismissal, as the position was genuinely redundant. The court also found that the dismissal process was procedurally fair, as Mr. Balkan was informed of the impending changes and given a reasonable opportunity to seek alternative positions within the company. Given these findings, the court determined that the dismissal was not unfair and dismissed the application. Consequently, Mr. Balkan’s claim for unfair dismissal was rejected.

Orders