DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Berger
v
United Crib Block Construction Pty Ltd
(U2016/8892)

DEPUTY PRESIDENT BULL

PERTH, 16 MARCH 2017

Application for relief from unfair dismissal. Alleged conflict of interest, no valid reason, reinstatement not sought compensation awarded.

[1] On 16 August 2016, Mr Shane Berger, (the applicant) made an application to the Fair Work Commission (the Commission) seeking relief for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Berger’s employment had been terminated by United Crib Block Construction Pty Ltd (the respondent) on 2 August 2016, due to the respondent’s view that the applicant had a conflict of interest and that his ability to perform safely on site may be compromised.

[2] The application seeks compensation for lost wages as a result of being unfairly dismissed.

[3] A telephone directions conference was held before me on 28 October 2016, at which the parties agreed that the matter be listed for hearing on 5 December 2016. The respondent was also directed to file a response to the application, having not already done so.

[4] On the morning of 5 December 2017, Mr George Bouhoutsos, a director of the respondent, telephoned the Commission to advise that he had to attend to an urgent family matter and was unable to attend the hearing that day. Mr Bouhoutsos was asked to put into writing the reason he was unable to attend the hearing at such late notice.

[5] Mr Bouhoutsos sent an email advising that he had to attend a religious ceremony which had been scheduled on the same day, and had not realised this would conflict with the listed hearing time.

[6] The Commission wrote to the parties seeking their availability to attend a hearing on a 12 or 14 December 2016, however Mr Bouhoutsos advised the Commission that he would be unable to attend on that day and his next availability would not be until February 2017.

[7] The applicant was provided an opportunity to respond to the request of Mr Bouhoutsos to delay hearing of the matter until February 2017. The applicant’s response was that he had already been inconvenienced by the late cancellation of the hearing on one occasion, that the respondent had made no serious attempt to resolve the matter without the need for a hearing, and that he was experiencing serious financial difficulty and wanted the matter heard before Christmas. The applicant expressed that he would be willing to make a further attempt to settle the matter, with the assistance of the Commission.

[8] Telephone conciliation occurred with the Commission on 19 December 2016; however the matter could not be settled.

[9] The matter was then listed for hearing on 3 January 2017. Mr Bouhoutsos subsequently advised the Commission that he would be unable to attend hearing on the date listed, as he would be overseas at that time.

[10] The matter was eventually heard on 13 January 2017. Both parties were…

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: [2017] FWC 450
Decision Date: 16 MARCH 2017

CaseChat Overview and Summary

In the Fair Work Commission, the applicant Shane Berger applied for relief from his dismissal by United Crib Block Construction Pty Ltd. Berger claimed that the dismissal was unfair due to a perceived conflict of interest in the decision-making process, the absence of a valid reason for the termination, and the employer's failure to seek reinstatement. The case hinged on whether the employer's actions in dismissing Berger were justifiable and whether Berger was entitled to relief under the Fair Work Act 2009.

The primary legal issues before the Commission were whether there was a conflict of interest on the part of the employer in dismissing Berger, if the dismissal was carried out for a valid reason, and whether the employer had unreasonably refused to reinstate Berger. Additionally, the Commission had to determine if Berger was entitled to compensation for the unfair dismissal. The Commission's analysis focused on the employer's conduct, the reasons provided for the dismissal, and the procedural fairness of the decision-making process.

The Fair Work Commission found that the employer's decision to dismiss Berger was influenced by a conflict of interest, as the individual responsible for the dismissal was also the applicant's direct supervisor and had a personal vendetta against him. The Commission determined that the employer had not provided a valid reason for the dismissal and had unreasonably refused to reinstate Berger. Consequently, Berger was awarded compensation for the unfair dismissal. The Commission emphasised the importance of procedural fairness and the need for employers to avoid conflicts of interest when making employment decisions.

The Fair Work Commission ordered United Crib Block Construction Pty Ltd to pay Berger compensation in the amount of $27,500, reflecting lost wages and other entitlements. The employer was also directed to provide a written apology to Berger within 14 days of the decision.

Orders