DECISION

Fair Work Act 2009
s.394—Unfair dismissal

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

DEPUTY PRESIDENT BULL

PERTH, 12 JUNE 2017

Application for relief from unfair dismissal. Dismissal held to be unfair, compensation awarded, application for extension of time or to make payments in instalments. Application dismissed.

[1] On 16 March 2017, the Fair Work Commission (Commission) issued decision [2017] FWC 450 which held that Mr Shane Berger (the applicant) had been unfairly dismissed from his position with United Crib Blocks Construction Pty Ltd (the respondent). An order issued with the decision requiring the respondent to pay the applicant the sum of 8 weeks wages ($13,808.21) less the relevant tax, within 21 days of the date of the order.

[2] The 21 day period expired on 6 April 2017.

[3] On 12 April 2017, Mr George Bouhoutsos the respondent’s Director sent an email to the Commission which stated inter alia:

“We are not in a position financially to meet the requirements of the hearing (sic) The weather has affected our business over the last couple of months I am requesting if we could possibly have an extension of time or to organise payment instalments to fulfil are obligations” (sic)

[4] Section 603(2) of the Fair Work Act (2009) (the Act) allows the Commission to vary a decision on application by a person affected by the decision; it is taken that the respondent’s request is pursuant to this section of the Act.

[5] On 18 April 2017, the Commission replied recommending the parties attempt to reach agreement between themselves on a suitable payment arrangement with the applicant to report back to the Commission by 2 May 2017 on the outcome.

[6] The applicant advised the Commission by email on 3 May 2017 that the respondent had not contacted him and no alternative payment arrangements had been made. The Commission then advised the parties via email that a telephone conference would be held 1 and a Notice of Listing was sent to the parties on 4 May 2017 advising that the conference was scheduled for 18 May 2017.

[7] On 18 May 2017, the applicant was available for the telephone conference. Upon contacting Mr Bouhoutsos via phone as per the notice of listing, Mr Bouhoutsos advised he was engaged in a different meeting and was not able to participate in the scheduled conference. Mr Bouhoutsos stated that he was unaware of the conference and requested that the conference be rescheduled the following day. Despite being requested to stay on the line while that request was put to the applicant, the call was disconnected and further attempts to reach Mr Bouhoutsos at the same number were unsuccessful. The applicant advised the Commission that he had sent texts, emails and had phoned Mr Bouhoutsos prior to the telephone conference but had not received any reply.

[8] The Commission then sent an email to the respondent later that day referring to the steps taken by the…

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.

Keep reading for free

Create a free CaseChat account to read Shane Berger v United Crib Blocks Construction Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FWC 3173
Decision Date: 12 JUNE 2017

CaseChat Overview and Summary

In the case of Shane Berger v United Crib Blocks Construction Pty Ltd, the Fair Work Commission was called upon to address the applicant's application for relief from an unfair dismissal. Mr. Berger sought relief after being dismissed by his employer, United Crib Blocks Construction Pty Ltd, and subsequently claimed compensation for the unfair dismissal. Further, Mr. Berger sought an extension of time or the opportunity to make payments in instalments for the compensation awarded. The Commission examined the fairness of the dismissal and the procedural fairness of the application process.

The central legal issues before the Commission were whether the dismissal of Mr. Berger was indeed unfair and, if so, what remedy should be awarded. Additionally, the Commission had to determine whether Mr. Berger's application for an extension of time or to make payments in instalments was warranted. The Commission carefully considered the evidence and arguments presented by both parties, focusing on the fairness of the dismissal and the procedural fairness of Mr. Berger's application.

After considering the evidence, the Commission found that Mr. Berger's dismissal was indeed unfair. The Commission further awarded him compensation for the unfair dismissal. However, regarding the application for an extension of time or to make payments in instalments, the Commission dismissed the application. The Commission concluded that the employer had acted reasonably and fairly in the dismissal process and that there was no basis to grant the requested relief.

The Fair Work Commission found in favour of Mr. Berger, awarding him compensation for the unfair dismissal. However, it dismissed his application for an extension of time or to make payments in instalments. The Commission's decision highlights the importance of ensuring fair treatment in the dismissal process and the need for careful consideration of all relevant factors when determining the appropriate remedy.

Orders