DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart Gates
v
Blugibbon Pty Ltd
(U2021/4290)

DEPUTY PRESIDENT EASTON

SYDNEY, 15 OCTOBER 2021

Application for an unfair dismissal remedy - valid reason - suspected misconduct - alleged unauthorised computer activities on sick leave - failure to make reasonable inquiries which would have brought existing facts to light before the dismissal occurred - procedural unfairness - remedy - compensation.

[1] On 19 May 2021 Mr Gates made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging he had been unfairly dismissed from his employment with Blugibbon Pty Ltd (Blugibbon). Mr Gates seeks revocation of the dismissal, compensation and a statement of service from the employer.

[2] On 29 April 2021 Mr Gates’ employment was terminated for alleged “serious misconduct” related to dishonesty and unauthorised use of confidential information.

[3] Blugibbon is a medical recruitment agency that directly engages and places medical practitioners in locum and other short-term roles in Local Health Districts, private hospitals and with the Commonwealth Department of Home Affairs.

[4] Blugibbon collects various documents and information from its clients, including CVs, identity documents, qualifications, registrations, employment preferences, insurance policies, visa information and the like. All of Blugibbon’s employees have access to shared storage drives containing such information for over 1000 medical practitioners.

[5] Mr Gates was issued with a laptop computer from which he could access Blugibbon’s databases.

[6] In early April 2021 Mr Gates was given a warning of sorts about his performance and his conduct. Mr Gates stayed at work for the next two days and then went on sick leave.

[7] Mr Gates told Blugibbon on Saturday 10 April 2021 that he was unfit to work for the next seven days. Mr Gates ultimately took sick leave for the whole of April 2021 and was covered by successive medical certificates. Unfortunately, Mr Whitaker, a Director of Blugibbon, immediately formed the view that Mr Gates was making plans to leave his employment and that Mr Gates was a threat to the business.

[8] Unsurprisingly the relationship between Mr Gates and Mr Whitaker then rapidly deteriorated. Polite but pointed emails ensued before a flurry of activity on 28 and 29 April 2021.

[9] Around midday on 28 April 2021 Mr Whitaker received a report of abnormal download activities using Mr Gates’ laptop, assumed Mr Gates was using his laptop for unlawful purposes (despite removing Mr Gates’ login privileges), retrieved the laptop, performed some preliminary searches and rang Mr Gates the next morning to dismiss him from his employment.

[10] Mr Whitaker’s apparent priority was to build the strongest possible case for Blugibbon to commence proceedings against Mr Gates in the Supreme Court of New South Wales which it eventually did on 21 May 2021. As such, nobody took time to properly investigate Mr Gates’ activities before dismissing him and Mr Gates was not…

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: [2021] FWC 6143
Decision Date: 15 OCTOBER 2021

CaseChat Overview and Summary

Stuart Gates filed an application against Blugibbon Pty Ltd seeking a remedy for an unfair dismissal. Gates alleged that he was dismissed without a valid reason, specifically due to his alleged misconduct while on sick leave, involving unauthorised computer activities. Blugibbon argued that Gates' dismissal was justified due to his conduct. The court had to determine whether Blugibbon had a valid reason to dismiss Gates, whether Gates' dismissal was procedurally fair, and if so, what remedy, if any, should be awarded.

The central legal issues revolved around whether Blugibbon had a valid reason to dismiss Gates, considering the alleged misconduct during his sick leave. The court had to assess if Blugibbon made reasonable inquiries to ascertain the facts before proceeding with the dismissal. The procedural fairness of the dismissal was also examined, including whether Blugibbon adhered to the procedural requirements set out in the Fair Work Act. The court needed to determine if Blugibbon's failure to make reasonable inquiries before dismissing Gates constituted a breach of procedural fairness.

The court found that Blugibbon did not have a valid reason to dismiss Gates, as there was insufficient evidence to substantiate the allegations of misconduct. The court held that Blugibbon failed to make reasonable inquiries which would have brought existing facts to light before the dismissal occurred, thus failing to adhere to procedural fairness. Consequently, the dismissal was deemed unfair. The court awarded Gates compensation for the unfair dismissal. This decision underscored the importance of conducting thorough investigations before dismissing an employee on suspicion of misconduct, especially when the employee is on sick leave.

Orders