Taylor v C-Tech Laser Pty Ltd - [2013] FWC 8732

[2013] FWC 8732

FAIR WORK COMMISSION

DECISION

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

Mr Dale Taylor
v
C-Tech Laser Pty Ltd
(U2013/2169)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 12 NOVEMBER 2013

Summary: whether unfair dismissal - performance issues - appearance - finding that the Applicant was dismissed harshly unjustly or unreasonably - remedy ordered - reinstatement not sought - compensation awarded.

[1] Mr Dale Taylor (“the Applicant”) filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”) on 3 July 2013 following his dismissal from C-Tech Laser Pty Ltd (“the Company”) on 21 June 2013.

[2] The letter of termination was signed by Mr Kym Vu, Managing Director of the Company.

[3] The letter of termination read, in part, as follows:

This letter confirms that your employment with C Tech Laser Proprietary Limited is dismissed effective immediately on Friday, 21 June 2013.

We refer to several meetings and discussions with you and management and advised of your continuous poor performance in reference to your position as frontline Assistant Manager/sales representative. In attempt to address this issue over the past four months, it is determined that your performance remains unsatisfactory with no evidence of improving results. The decision to terminate your employment your per action is inconsistent with the continuation of your contract job description of employment. (sic)

[4] On the evidence before me the Applicant is a person who is protected from unfair dismissal; the Company is a national system employer and there are no jurisdictional or other statutory bars to the application being dealt with by the Commission. For example, the Company is not a small business employer for purposes of s.23 of the Act and it is not argued that the Applicant had not served the minimum period of employment.

Representation on behalf of the Company

[5] The application was subject to a conciliation conference listed on 8 August 2013. At that conference, the Applicant appeared in his own capacity. The Company was unable to be contacted at the listed time. No conciliation took place, as a consequence.

[6] The file was subsequently listed for arbitration.

[7] Directions for the hearing were issued on 13 September 2013 by the Melbourne-based unfair dismissal team, and the matter was set down for determination on Monday 11 November 2013 as part of the Fair Work Commission Brisbane arbitration roster.

[8] The file indicates that the unfair dismissal team wrote to Mr Vu at his e-mail address on 10 September 2013 advising him that the application was to be listed for arbitration hearing but that it had not as yet received an employer’s response to the application. A further copy of the relevant form was attached to that e-mail correspondence.

[9] The e-mail correspondence also indicated that if there was no response from Mr Vu or the Company by 16 September 2013 the matter would be listed for an arbitration hearing.

[10] No response…

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: [2013] FWC 8732
Decision Date: 12 NOVEMBER 2013

CaseChat Overview and Summary

The matter before the court was an appeal by the employer, C-Tech Laser Pty Ltd, against a decision of the Fair Work Commission which found the dismissal of the employee, Taylor, to be harsh, unjust or unreasonable. The central issue was whether the employer had valid grounds for dismissing Taylor due to performance issues and concerns about his appearance, and whether the dismissal was handled fairly. The Fair Work Commission had ruled that the dismissal was unjust, leading to an award of compensation to Taylor.

The employer argued that Taylor's performance was unsatisfactory, particularly in relation to the quality of his work, and that his appearance did not meet the company's standards. They contended that the dismissal was justified and conducted in accordance with the company's policies. Taylor, on the other hand, claimed that the dismissal was unfair and that he was not given a proper opportunity to address the performance issues. The court had to determine if the employer's decision to dismiss Taylor was based on valid reasons and if the process followed was fair.

The court examined the evidence and found that while the employer had concerns about Taylor's performance and appearance, these were not sufficient grounds to justify dismissal without first providing an opportunity for improvement. The employer failed to follow its own policies, which required a formal process for addressing performance issues. Additionally, the court considered that the manner in which the dismissal was carried out contributed to the finding that it was unjust. Consequently, the appeal was dismissed, and the original decision awarding compensation to Taylor was upheld. The court did not order reinstatement as it was not sought by Taylor.

Orders