Sander Toonen v Veem Limited - [2024] FWC 855

[2024] FWC 855

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sander Toonen

Veem Limited

(U2023/9212)

COMMISSIONER LIM

PERTH, 8 APRIL 2024

Application for an unfair dismissal remedy – no valid reason – no procedural fairness – dismissal unfair – compensation awarded

On 22 September 2023, Mr Sander Toonen applied to the Fair Work Commission alleging that he was unfairly dismissed from his employment with Veem Limited (Veem or Respondent).

Mr Toonen’s employment as an After Sales Manager with Veem commenced on 30 January 2023 and ended by way of dismissal on 1 September 2023. Veem dismissed Mr Toonen for failing to obey lawful and reasonable instructions regarding performance of his job. Mr Toonen denies all the allegations and contends that he was unfairly dismissed pursuant to s 385 of the Fair Work Act 2009 (Cth) (Act).

Veem raised a jurisdictional objection to Mr Toonen’s application on the basis that Mr Toonen was not protected from unfair dismissal under s 382 of the Fair Work Act 2009 (Act). This was dealt with in my decision Sander Toonen v Veem Limited[2024] FWC 234 (Jurisdictional Decision).

In the Jurisdictional Decision, I found that:
a) Mr Toonen had completed the minimum employment period in s 383 of the Act and was covered by the Manufacturing and Associated Industries and Occupations Award 2020. Mr Toonen was thus protected from unfair dismissal pursuant to s 382 of the Act.
b) Mr Toonen’s unfair dismissal application was made within the time prescribed in s 394(2) of the Act; and
c) The Respondent was not a small-business employer within the meaning of the Act and so the Small Business Fair Dismissal Code did not apply.

The matter was subsequently programmed for a merits hearing on 21 March 2023. At the hearing I granted permission to Mr Patrick Mullally to represent Mr Toonen. Mr Toonen gave evidence in support of his case. Mr Mark Miocevich, Managing Director for Veem, represented Veem and gave sworn evidence.

Prior to the hearing of the matter, my chambers constructed a paginated court book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book.

Having considered the relevant evidence and submissions of the parties, I find that Mr Toonen’s dismissal was harsh, unjust or unreasonable. I find that he was unfairly dismissed. I also find that it is appropriate to award Mr Toonen a remedy of $50,192.36.

My detailed reasons follow.

Evidence

2.1 Background

By way of background, I adopt paragraphs [11] – [29] of the Jurisdictional Decision, which can be summarised as follows:

(a)Veem is an engineering and manufacturing business that designs, manufactures and installs propulsion and stabilisation systems for luxury yachts; ferries; workboats; and the defence industry. In particular, they specialise in the development and sale of gyrostabilisers.
(b)Mr Toonen’s job title was After Sales and Support Manager. He commenced this role on 30 January…

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 Sander Toonen v Veem Limited

Details

AGLC: Sander Toonen v Veem Limited [2024] FWC 855
Case: [2024] FWC 855
Decision Date: 8 APRIL 2024

CaseChat Overview and Summary

In the matter of Sander Toonen v Veem Limited, the Fair Work Commission (FWC) found that Mr Toonen was unfairly dismissed from his position as After Sales Manager at Veem Limited. The primary legal issue was whether Mr Toonen’s dismissal was harsh, unjust, or unreasonable under section 385 of the Fair Work Act 2009 (Cth). The court considered various factors, including the validity of the reason for dismissal, notification of the reason, opportunity to respond, and the size of the employer’s enterprise. The FWC concluded that there was no valid reason for Mr Toonen’s dismissal and that Veem failed to provide procedural fairness. Consequently, the FWC found the dismissal to be unfair. The court awarded Mr Toonen compensation of $50,192.36, calculated based on the remuneration he would likely have earned, less earnings and payments made since the dismissal, and taking into account other relevant factors. The compensation order was deemed appropriate given all the circumstances of the case.

Orders