DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Shane Brand
v
Beijer Ref Australia Pty Ltd
(U2019/3870)

COMMISSIONER HAMPTON

ADELAIDE, 13 AUGUST 2019

Application for an unfair dismissal remedy - applicant dismissed due to alleged serious and wilful misconduct - multiple allegations - alleged theft of company property, damaging of company property, misuse of company credit card, sexual harassment, failure to comply with reasonable and lawful directions, breach of safety policies - all allegations denied by applicant - consideration of allegations - findings made on the balance of probabilities having regard to the nature and consequences of the allegations - some serious and other misconduct found to have occurred - not satisfied theft and deliberate damage occurred as alleged - valid reason for dismissal found - whether dismissal harsh - balance of considerations - impact on applicant, personal circumstances including health and other matters considered - notice and long service leave entitlements withheld - dismissal not unfair as a result given nature of misconduct - on balance, dismissal not harsh, unjust or unreasonable - application dismissed.

1. Introduction and case outline

[1] Mr Shane Brand has made an application under s.394 of Fair Work Act 2009 (the FW Act) for a remedy in connection with an alleged unfair dismissal by his former employer, Beijer Ref Australia Pty Ltd (Beijer or the Respondent).

[2] Beijer is a business employing around 80 employees and provides refrigeration services from various locations, including through its office in Hindmarsh, Adelaide (the Adelaide Office) where Mr Brand was engaged.

[3] Mr Brand commenced full-time employment with Beijer in a sales role in August 2011 and was promoted to the position of Business Development Manager in July 2015. At the time of his dismissal on 21 March 2019, Mr Brand was in the role of a part-time Counter Sales Assistant following a period of absences from work between late October 2018 and late February 2019.

[4] Mr Brand’s dismissal was on the basis of alleged serious and wilful misconduct stated 1 by the Respondent to be:

• Sexual harassment of another employee;

• Failure to comply with reasonable and lawful directions;

• Unauthorised use of the Respondent’s Credit Card;

• Damaging the reputation and good standing of the Respondent;

• Theft of company property (a laptop computer);

• Breach of Work, Health and Safety (WHS) policies; and

• Damage of company property (a mobile phone).

[5] Mr Brand denies each of these allegations and contends, in effect, that Beijer:

• Failed to support him and meet its WHS obligations when dealing with his mental health condition and his return to the workplace;

• Treated him in a demeaning manner on his return to work, which set the context for the limited conduct that did occur on the day in question – 28 February 2019;

• Relied on false and exaggerated allegations and complaints which were not supported by any evidence and had not been subject to previous…

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: [2019] FWC 5245
Decision Date: 13 AUGUST 2019

CaseChat Overview and Summary

In the case of Shane Brand v Beijer Ref Australia Pty Ltd, the applicant, Shane Brand, sought relief from the Fair Work Commission for an unfair dismissal. Brand was dismissed by Beijer Ref Australia Pty Ltd for what the company alleged to be serious and wilful misconduct. The specific allegations included theft and damage of company property, misuse of a company credit card, sexual harassment, failure to comply with lawful directions, and breaches of safety policies. Brand denied all allegations.

The court had to decide whether Brand's dismissal was justified and whether it was harsh, unjust, or unreasonable under the Fair Work Act. The court examined the evidence and found some allegations of misconduct to be substantiated while others were not. The court was not persuaded that theft and deliberate damage occurred as claimed, but it did find that Brand had engaged in other serious misconduct. The employer's decision to dismiss Brand was deemed valid due to the nature and consequences of the misconduct.

The court also considered whether the dismissal was harsh, unjust, or unreasonable. Brand's personal circumstances, including health issues, were taken into account. Despite the withholding of notice and long service leave entitlements, the court concluded that the dismissal was not unfair. Given the seriousness of the misconduct, the dismissal was considered justified and not harsh, unjust, or unreasonable. The application for an unfair dismissal remedy was dismissed.

The final orders of the court confirmed the dismissal of the applicant's application for unfair dismissal, affirming the decision of Beijer Ref Australia Pty Ltd.

Orders