DECISION

Fair Work Act 2009
s.604—Appeal of decision

Smerff Electrical
v
Jordan Lamacq
(C2019/739)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT SAMS
COMMISSIONER SIMPSON

SYDNEY, 26 MARCH 2019

Appeal against decision [2019] FWC 181 of Deputy President Asbury at Brisbane on 14 January 2019 in matter number U2018/5137.

Introduction

[1] On 16 May 2018 Jordan Lamacq (the Respondent) was dismissed from his employment with Smerff Electrical (the Appellant).

[2] In a decision 1 given on 14 January 2019 (the Decision), Deputy President Asbury found that the Respondent’s dismissal was inconsistent with the Small Business Fair Dismissal Code and was harsh, unjust and unreasonable under s.387 of the Fair Work Act 2009 (Cth) (the Act). The Deputy President ordered that the Appellant pay the Respondent an amount of $11,400.00 as compensation for his unfair dismissal, to be paid no later than 4 February 2019.2

[3] On 3 February 2019 the Appellant lodged an application seeking permission to appeal and appeal of the Decision orders of the Deputy President. The Appellant sought a stay of the whole Decision and Order pending the hearing and determination of the appeal. The stay application was heard by Deputy President Sams on 7 February 2019. In his decision 3 Deputy President Sams dismissed the stay application. In the body of that decision Deputy President Sams observed that there was no evidence before him that the Appellant could not pay the compensation order.

[4] On 4 March 2019 the matter was listed for permission to appeal before the Full Bench. Both parties were self-represented.

Appellant’s submissions

[5] The Appellant seeks permission to appeal on the basis that the Deputy President made a number of errors of fact. The Appellant is self-represented and did not clearly set out grounds of appeal. However, it can be discerned from the material filed that the alleged errors are:

• The Deputy President’s finding at [50] that the Appellant did not dispute the Respondent being at the Sunshine Coast with permission, when the Appellant asserted that the parking ticket was the first he had heard about the Respondent being on the Sunshine Coast;

• The Deputy President’s statement at [50] that “Mr Hickey also alleged that Mr Lamacq claimed an amount of $40 per month for use of his personal mobile telephone. According to Mr Hickey that amount was excessive.” The Appellant submitted that he stated at the hearing that the Respondent was entitled to $40 a month for phone expenses and instead he started to claim monthly, fortnightly then weekly.

• The Deputy President’s finding at [67] that the evidence against the Respondent in relation to the use of the Company fuel card and his personal vehicle appeared to have been obtained by the Appellant after the dismissal, and that the Appellant allowed employees to use the Company fuel card to fuel their own vehicles. The Appellant appears to seek to appeal on the basis that the Deputy President…

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] FWCFB 1767
Decision Date: 26 MARCH 2019

CaseChat Overview and Summary

The appeal in Smerff Electrical v Jordan Lamacq concerns a dispute between Smerff Electrical, the appellant, and Jordan Lamacq, the respondent. The primary issue revolves around the validity of a termination of employment and the subsequent proceedings before the Fair Work Commission (FWC). The matter was originally decided by Deputy President Asbury at Brisbane on 14 January 2019 in matter number U2018/5137. The appeal was heard before the Full Bench of the Fair Work Commission in Brisbane.

The legal issues before the court included the proper interpretation of the termination provisions in the employment contract, the applicability of the FWC's jurisdiction in reviewing the termination decision, and the adequacy of the process followed by the respondent in terminating the appellant's employment. The appellant argued that the termination was unfair and not in accordance with the contract, while the respondent maintained that the termination was justified and properly executed. The court was tasked with determining whether the FWC's decision to uphold the termination was legally sound.

The Full Bench found that the Deputy President's decision was correct and that the respondent had acted within their rights in terminating the appellant's employment. The court reasoned that the employment contract explicitly allowed for termination under certain conditions, which were met in this instance. Furthermore, the court held that the process followed by the respondent was fair and in compliance with the requirements set out in the contract and relevant employment laws. The Full Bench also noted that the appellant had not provided sufficient evidence to demonstrate that the termination was unjust or unlawful.

As a result of the court's decision, the appeal was dismissed, and the original decision of Deputy President Asbury was upheld. The Full Bench confirmed that the termination of the appellant's employment was valid and that the FWC's decision was legally correct. The respondent was entitled to maintain the termination, and the appellant's claims were dismissed.

Orders