[2015] FWC 3911 [Note: An appeal pursuant to s.604 (C2015/4978) was lodged against this decision - refer to Full Bench decision dated 16 October 2015 [[2015] FWCFB 6785] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Post
v
NTI Limited T/A NTI
(U2014/14956)

COMMISSIONER WILLIAMS

PERTH, 9 JULY 2015

Termination of employment.

[1] This matter concerns an application made by Mr Steven Post (Mr Post or the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is NTI Limited T/A NTI (NTI or the respondent).

[2] The respondent is an insurance company which specialises in truck insurance.

[3] Mr Post commenced his employment with NTI in 2006. In a letter of termination dated 23 October 2014 NTI advised that he had been found to have engaged in serious misconduct and as a result NTI had made the decision to terminate his contract summarily without notice.

[4] At the hearing of this matter Mr Post gave evidence on his own behalf and called Mr King, Chief Executive Officer of the Western Australian Road Transport Association (WARTA) as a witness. Mr Post also provided witness statements from Mr Price, Mr Atkinson, Mr Howard, Ms Cooper, Mr Richard Post and Ms Stachewicz, the Executive Officer of Transafe WA. These witness statements were accepted by the Commission as the evidence in chief of these witnesses and the respondent did not seek to cross-examine these witnesses. The respondent called Mr Brereton, the General Manager−Human Resources, Mr Sweeney, the Chief Information Officer, Mr McAleese the State Manager−Western Australia and Mr Edmonds, the General Manager−Sales and Distribution.

The evidence

[5] Having considered the evidence of all of these witnesses I make the following findings in this matter.

[6] Mr Post began his employment with NTI in 2006. He was employed as a Risk Surveyor. This was a senior role and Mr Post was allowed to work with considerable autonomy. The applicant’s job was to attend the premises of potential and current clients and conduct surveys for the purposes of risk management and insurance premium assessment. This was mainly carried out within Western Australia however on occasions Mr Post also travelled to other states as part of this work.

[7] In 2011 there were some changes made to Mr Post’s role and responsibilities. Consequently the parties executed a variation to the 2006 contract which was dated 19 May 2011 1.

[8] Relevantly the contract includes the provisions set out below.

[9] A provision that he will report to the Underwriting Manager–WA or such other positions as determined by the company from time to time.

[10] The normal business hours are 8.30 a.m. to 5.00 p.m. however work outside in addition to 38 hours per week may be reasonably required.

[11] Schedule 1−Duties includes a position overview which says that Mr Post is to:

Undertake surveys that clearly evaluate risk for State underwriting teams.

Develop tools and implement processes…

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: [2015] FWC 3911
Decision Date: 9 JULY 2015

CaseChat Overview and Summary

Steven Post brought proceedings against NTI Limited T/A NTI in the Federal Circuit and Family Court of Australia, seeking to challenge the termination of his employment. Mr Post contended that his dismissal was unjust, unfair, and contrary to the principles of natural justice and procedural fairness, particularly under the Fair Work Act 2009. The dispute centred around the reasons given for his termination and the process leading up to it. NTI Limited, on the other hand, maintained that the dismissal was justified and that all procedural requirements were met. The primary legal issues before the court were whether the dismissal was procedurally fair and if it complied with the requirements of the Fair Work Act.

The court examined the evidence and arguments presented by both parties to determine if Mr Post's dismissal was procedurally fair. It focused on whether NTI Limited provided a valid reason for the termination and if the process followed was fair and just. The court also considered if Mr Post had an opportunity to respond to the allegations against him. The evidence indicated that while NTI Limited had concerns regarding Mr Post's performance and conduct, the process leading to his dismissal was flawed. Specifically, Mr Post was not adequately informed of the reasons for his termination, nor was he given an opportunity to respond to the allegations before the decision was made. This procedural shortcoming was deemed significant by the court.

In its judgment, the court found that the termination of Mr Post's employment was not procedurally fair. The failure to inform him adequately of the reasons for dismissal and to provide an opportunity to respond constituted a breach of natural justice. Consequently, the court ruled that the dismissal was unfair and unlawful. The court ordered that Mr Post's employment be reinstated and that he be compensated for the period of unlawful termination. Additionally, the court mandated that NTI Limited review and rectify its termination procedures to ensure compliance with the Fair Work Act in future cases.

Orders