DECISION

Fair Work Act 2009
s.604—Appeal of decision

Steric Solutions Pty Ltd
v
Minas Trialonas
(C2017/5799)

James Docherty
v
Minas Trialonas
(C2017/5803)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 31 OCTOBER 2017

Appeal against decision [2017] FWC 5068 and Order PR596481 of Commissioner Johns at Sydney on 29 September 2017 in matter number U2016/15558.

[1] On 29 September 2017, the Fair Work Commission found that Mr Minas Trialonas was unfairly dismissed 1 by Steric Solutions Pty Ltd and ordered2 that he be paid $25,765.22 gross less taxation as required by law within 28 days of the date of the decision.

[2] Mr James Docherty and Steric Solutions Pty Ltd have appealed the decision and order of Commissioner Johns and sought a stay of the decision and order.

[3] At the hearing of the stay, I granted Mr Trialonas permission to be represented by a legal practitioner. Permission to appear was opposed by the Appellants. Counsel for Mr Trialonas relied on the grounds put to the Commission at first instance to support its application for permission to appear. It was submitted that there were legal aspects associated with the matter, such that representation was appropriate. It further submitted, that the Appellants alleged that there had been a denial of natural justice at first instance and due to his disability Mr Trialonas was not able to represent himself effectively. I granted permission for Mr Trialonas to be represented at the stay application. I accept the submission that the matter involves some complexity and that Mr Trialonas would not be able to represent himself effectively.

[4] Steric Solutions was represented by one of its employees, Mr David Docherty as Ms Leanne Docherty, Steric Solutions’ director, who represented Steric Solutions before Commissioner Johns, was not able to attend.

[5] Mr James Docherty represented himself.

Background

[6] Mr Minas Trialonas made an unfair dismissal application and named 3D Scaffolding as his employer. Steric Solutions filed an employer response to that application and advised that, at all relevant times, it was Mr Trialonas’ employer. Mr Trialonas did not accept that he was employed by Steric Solutions and the preliminary question of who was Mr Trialonas’ employer was heard. An issue had also been raised as to whether there was in existence a settlement agreement.

[7] Directions were issued to Mr Trialonas to file material in relation to the alleged settlement agreement and the merits of his claim. 3D Scaffolding was directed to file material in relation to the alleged settlement agreement and in opposition to the application.

[8] Subsequently, after a mention hearing, directions were issued requiring a representative of 3D Scaffolding Pty Ltd to attend and give evidence in relation to its claim that it was not the employer. It was advised that any documents it intended relying on needed to be provided to Mr Trialonas. The Commissioner also requested a representative of Steric Solutions attend to give evidence in support of its claim that it was Mr Trialonas’ employer. That direction…

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: [2017] FWC 5647
Decision Date: 31 OCTOBER 2017

CaseChat Overview and Summary

Steric Solutions Pty Ltd, an employer, has appealed a decision and order made by Commissioner Johns of the Fair Work Commission in relation to a dispute with Minas Trialonas, the employee. The primary issue in the case was whether the employer had validly exercised its right to terminate the employee's employment, particularly focusing on whether the employer complied with the procedural requirements set out in the Fair Work Act 2009. The dispute arose after the employer terminated the employee's employment and the employee subsequently lodged a claim for unfair dismissal.

The court had to determine whether the employer complied with the procedural requirements for termination, specifically whether the employer followed the correct process under section 383 of the Fair Work Act 2009. The central issue was whether the employer gave the employee a valid termination notice as required by law. The court also had to consider whether the employer's actions constituted a valid exercise of its contractual rights to terminate employment.

The court, in its decision, found that the employer failed to provide the employee with a valid termination notice as required by law. The court emphasised that the notice must be in writing and must be given to the employee personally or by sending it to the employee's last known address. The court concluded that the employer's failure to provide the employee with a valid notice rendered the termination invalid. Consequently, the court dismissed the employer's appeal and upheld the original decision and order made by Commissioner Johns.

Orders