Stephen Pitceathly v Diona Pty Limited - [2011] FWA 478

[2011] FWA 478

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Pitceathly
v
Diona Pty Limited
(U2010/11250)

COMMISSIONER RYAN

MELBOURNE, 24 JANUARY 2011

Application for unfair dismissal remedy - not redundancy.

[1] Application was made on 4 August by Mr Pitceathly under s 394 of the Fair Work Act 2009 (the Act) for a remedy in relation to his alleged unfair dismissal on 30 July 2010 from his employment by Diona P/L (the Respondent).

[2] A letter of termination was given to Mr Pitceathly on 30 July 2010. Relevantly the letter identified that it was a “Notice of Redundancy” and the reason for termination was described as follows:

“With the implementation of COINS and the impact it has had on your role, it has been agreed by management that an appropriately tertiary trained person will be required to perform these works in line with our operation in NSW and SA. This letter is to inform you that due to these changes a decision has been made to make the existing role redundant.

Given the current decline in available work to Diona in Queensland at this time, we are unable to offer you alternative employment in another suitable role.”

[3] Mr Pitceathly contends that his termination was not a genuine redundancy.

[4] Subsequent to the termination being effected on 30 July 2010 and Mr Pitceathly filing his application in this matter the Respondent has asserted that as a result of investigation it now asserts that the termination is also justified on the basis of deliberate and dishonest conduct by Mr Pitceathly whilst employed in that Mr Pitceathly claimed and was paid for hours that he did not work and further that Mr Pitceathly used his position to order a quantity of degreaser which was intended for his personal use. The Respondent wrote to Mr Pitceathly on 6 October 2010 asserting that Mr Pitceathly had been overpaid on the basis that his claimed hours of work were excessive. The Respondent wrote to Mr Pitceathly on 11 October 201 requesting that he explain by 4.00pm on 13 October 2010 why he ordered the degreaser. On 20 October the Respondent issued a formal Letter of Demand to Mr Pitceathly demanding the repayment of $4482.50, being the cost of the degreaser.

[5] The Respondent contended that not only was the termination a genuine redundancy but that separate from the genuine redundancy the Respondent had a valid reason for the termination of Mr Pitceathly’s employment based upon either or both of the assertions that Mr Pitceathly had claimed payment for hours not worked and/or his conduct in ordering degreaser for his own personal use.

[6] At all times throughout these proceedings Mr Pitceathly represented himself.

[7] The Respondent filed a Notice of Representative Commencing To Act on 27 September 2010 identifying their representative as Mr Ziv Ben-Arie of Doyles Construction Lawyers. However, during the hearing of this matter before Fair Work Australia on 19 November 2010 the Respondent was represented by Mr David…

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: [2011] FWA 478
Decision Date: 24 JANUARY 2011

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia recently heard a case involving Stephen Pitceathly, an employee, and Diona Pty Limited, his former employer. The dispute centred around an application for an unfair dismissal remedy, with the primary issue being whether Mr. Pitceathly was unfairly dismissed, specifically whether the dismissal was related to redundancy.

The court had to determine whether the dismissal of Mr. Pitceathly was indeed unfair under the Fair Work Act 2009. In examining this, the court needed to establish if the dismissal was due to reasons other than redundancy, which was the employer's contention. The central legal issue was whether the employer had a valid reason to terminate Mr. Pitceathly's employment, and if the process followed was procedurally fair. The court's task was to review the evidence provided by both parties and apply relevant legal principles to ascertain whether the dismissal was justified and conducted fairly.

In delivering its judgment, the court examined the procedural fairness of the dismissal process and the substantive fairness of the decision to terminate Mr. Pitceathly's employment. The court considered the employer's justification for the dismissal, the evidence of the workplace culture and the employer's actions, and whether Mr. Pitceathly's dismissal was reasonable in the circumstances. Ultimately, the court found that the dismissal was unfair as it was not related to redundancy and was not conducted in a procedurally fair manner. Consequently, the court granted Mr. Pitceathly the remedy of unfair dismissal.

Orders