DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Simon Lewis
v
SGA (1994) Pty Ltd
(U2019/6862)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 23 DECEMBER 2019

Application for an unfair dismissal remedy – hospitality sector – chief engineer – summary dismissal – procurement practices – non-disclosure of conflict of interest – alleged kickbacks – alleged falsification of quote - duty of fidelity – valid reason on some but not all allegations – procedural fairness – dismissal not harsh, unjust or unreasonable – application dismissed

[1] On 21 June 2019 Simon Lewis (Mr Lewis or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his summary dismissal by SGA (1994) Pty Ltd T/A Stamford Grand 1 (Stamford, the Respondent or the employer). He claims to have been unfairly dismissed on 14 June 2019.

[2] At the date of dismissal Mr Lewis was employed by Stamford as Chief Engineer of the Stamford Adelaide hotel in Glenelg, South Australia.

[3] Mr Lewis claims his dismissal was harsh, unjust or unreasonable. He seeks an order for compensation. He does not seek reinstatement.

[4] Stamford oppose the application. It says it terminated Mr Lewis’s employment summarily on the ground of serious misconduct. Stamford contend the dismissal was not harsh, unjust or unreasonable, and no issue of remedy arises.

[5] No jurisdictional issues arise in determining this matter. Mr Lewis was protected from unfair dismissal within the meaning of section 382 of the FW Act. He served the statutorily required minimum employment period (section 382(2)(a)). His annual rate of earnings did not exceed the high income threshold (section 382(2)(b)(iii)). His employer was a “national system employer” within the meaning of section 14 of the FW Act. His application was filed within the statutorily required 21 days after dismissal took effect.

[6] Conciliation of the application by a Commission-appointed conciliator occurred on 29 July 2019. It did not resolve. The application was referred for hearing and determination.

[7] On 8 August 2019 I issued directions concerning case management.

[8] On 25 September 2019, by consent, I granted permission under section 596 of the FW Act for both Mr Lewis and Stamford to be represented: Mr Lewis by a paid agent, and Stamford by a legal practitioner. 2

[9] Further interlocutory issues arose concerning the attendance of witnesses. On the employer’s application and by consent, on 23 October 2019 I ordered that two former employees (Trieneke Collins and Andrew Baggaley) and a supplier of services (Lochlan Weeks), attend to give evidence.

[10] I heard the matter (merits and remedy) by formal hearing in Adelaide on 28, 29 and 30 October and (with Mr Lewis’s representative by video conference) on 19 November 2019. Upon reserving my decision, I provided a further opportunity for additional written submissions on remedy, which I subsequently received. 3

[11] Mr Lewis was represented by a…

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 8552
Decision Date: 23 DECEMBER 2019

CaseChat Overview and Summary

Simon Lewis, a former employee of SGA (1994) Pty Ltd, filed an application seeking an unfair dismissal remedy. Mr Lewis, who was employed as a chief engineer in the hospitality sector, was summarily dismissed from his position. The basis of the dismissal was the employer's assertion that Mr Lewis had engaged in procurement practices that breached his duty of fidelity, specifically, he was accused of non-disclosure of a conflict of interest, receiving kickbacks, and allegedly falsifying a quote. The matter was heard in the Fair Work Commission.

The central legal issues before the court were whether Mr Lewis's dismissal was justified and whether the dismissal process adhered to the principles of procedural fairness. Additionally, the court had to determine if the dismissal was harsh, unjust, or unreasonable. The key issues also included whether the employer had valid grounds for dismissal concerning some of the allegations, and if the dismissal was fair in light of those valid grounds.

The court found that while the employer had valid reasons to dismiss Mr Lewis on some of the allegations, such as the breach of the duty of fidelity, the dismissal was not justified in its entirety due to the lack of evidence supporting all the allegations against Mr Lewis. The court also concluded that the dismissal process was procedurally fair. Furthermore, the court determined that the dismissal was not harsh, unjust, or unreasonable, as it was based on valid reasons and followed the employer's policies. Consequently, the application for an unfair dismissal remedy was dismissed.

The Fair Work Commission dismissed the application, finding that the employer had valid grounds for dismissing Mr Lewis on certain allegations, and the dismissal process was procedurally fair. The court ruled that the dismissal was not harsh, unjust, or unreasonable.

Orders