Symes v Linfox Armaguard Pty Ltd - [2012] FWA 4789

Note: An appeal pursuant to s.604 (C2012/4319) was lodged against this decision - refer to Full Bench decision dated 12 September 2012 [[2012] FWAFB 7877] for result of appeal.

[2012] FWA 4789

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Craig Symes
v
Linfox Armaguard Pty Ltd
(U2011/15004)

COMMISSIONER CARGILL

SYDNEY, 8 JUNE 2012

Termination of employment.

[1] This decision arises from an application by Mr C Symes (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by Linfox Armaguard Pty Ltd (the respondent or the company). The applicant’s dismissal occurred on 16 December 2011 and his application for relief was lodged with Fair Work Australia (FWA) on 22 December 2011.

[2] The matter was dealt with by an FWA Conciliator but did not settle. It was heard by me in Brisbane on 17 and 18 May 2012. The matter proceeded by way of hearing as I considered that it was appropriate to do so having taken into account the factors set out in section 399 of the Act.

[3] The applicant was represented by Mr Carter, Legal Officer with the Queensland Branch of the Transport Workers’ Union of Australia (TWU). The respondent was represented by Mr Tindley, solicitor.

[4] The applicant gave evidence. His witness statement dated 8 March 2012 was marked Exhibit Applicant 1. His statement dated 15 May 2012 was marked Exhibit Applicant 2. The applicant’s oral testimony is at PN 41-421 of Transcript. The following witnesses also gave evidence on behalf of the applicant:

Mr S Matthews Colleague of the applicant and TWU delegate at the relevant site. His witness statement was marked Exhibit Applicant 4 and his oral testimony is at PN 429-706 of Transcript;

Mr J Green Colleague of the applicant and TWU delegate. His witness statement was marked Exhibit Applicant 6 and his oral testimony is at PN 733-852 of Transcript;

Mr B Steindl Colleague of the applicant. His witness statement was marked Exhibit Applicant 7 and his oral testimony is at PN 855-950 of Transcript;

Mr K Ritchie Employee of the respondent. Mr Ritchie appeared in response to an order to attend. His oral testimony is at PN 1572-1591 of Transcript.

[5] The following witnesses gave evidence on behalf of the respondent:

Mr A Hala Distribution Manager of the relevant site. At the relevant time Mr Hala was the applicant’s direct supervisor. His witness statement was marked Exhibit Respondent 1 and his oral testimony is at PN 962-1421 of Transcript;

Mr O Rojas Employee of the respondent. His witness statement was marked Exhibit Respondent 2 and his oral testimony is at PN 1425-1565 of Transcript;

Mr M Armstrong Manager of the relevant site. His witness statement was marked Exhibit Respondent 3 and his oral testimony is at PN 1595-2003 of Transcript.

[6] There was extensive evidence and much material provided in these proceedings. Although I do…

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.

Keep reading for free

Create a free CaseChat account to read Symes v Linfox Armaguard Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FWA 4789
Decision Date: 8 JUNE 2012

CaseChat Overview and Summary

The case of Symes v Linfox Armaguard Pty Ltd involved a dispute regarding the termination of the claimant's employment. The matter was heard in the Fair Work Commission. The employee, Mr Symes, alleged that his employment was terminated unfairly and without just cause or reason, contrary to the provisions of the Fair Work Act 2009. The employer, Linfox Armaguard Pty Ltd, maintained that the termination was lawful and justified due to Mr Symes's alleged misconduct.

The legal issues central to the case revolved around whether the employer had valid grounds to terminate Mr Symes's employment and whether the process followed was fair and compliant with the relevant employment laws. Specifically, the court had to determine if the employer had a valid reason to terminate the employment, if the termination process adhered to procedural fairness, and whether the employer's actions constituted an unfair dismissal.

In reaching its decision, the commission examined the evidence presented by both parties, including the employer's justification for the termination and the employee's response to the allegations. The commission found that the employer had acted reasonably and lawfully in terminating Mr Symes's employment due to his misconduct. The commission concluded that the employer had followed a fair process and had just cause to dismiss Mr Symes, thus upholding the employer's actions as lawful and justified. Consequently, the claim for unfair dismissal was dismissed.

Orders