Thiess Services Pty Ltd v Stephens - [2014] FWCFB 2426

[2014] FWCFB 2426

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Thiess Services Pty Ltd
v
M Stephens
(C2014/2889)

SENIOR DEPUTY PRESIDENT WATSON
DEPUTY PRESIDENT GOOLEY
COMMISSIONER BISSETT

MELBOURNE, 11 APRIL 2014

Appeal against decision [[2014 FWC 330] and order PR546774] of Commissioner Johns in matter number U2013/9909—leave to appeal granted—appeal upheld—decision and order quashed—decline to allow Respondent further period to make unfair dismissal application—unfair dismissal remedy application is dismissed.

[1] This is an appeal by Thiess Services Pty Ltd (the Appellant) against a decision¹ and order 2 of Commissioner Johns of 13 January 2014 in relation to an application³ made under s.394 of the Fair Work Act 2009 (the Act).Commissioner Johns extended the time for the making of the application under s.394(2)(b) of the Act.

[2] The s.394 application was made by Mr M Stephens (the Respondent) in relation to the termination of his employment by the Appellant on 21 February 2013 on the basis of conduct said to constitute serious misconduct. The Respondent made an application by telephone on 15 May 2013, which was regularised by the filing of a signed and dated application in the Fair Work Commission (the Commission) on 25 September 2013.

[3] At the time of the Respondent’s termination, applications under s.394 of the Act were required to be filed within 21 days of the date the dismissal took effect or within such further period as the Commission may allow. The 21 day period ended on 14 March 2013. Accordingly, the Respondent’s unfair dismissal application was filed 62 days out of time by reference to the application by telephone or 195 days out of time by reference to the filing of the signed and dated application of 25 September 2013.

Background

[4] The employment of the Respondent was terminated by the Appellant by letter of 21 February 2013 on the grounds of serious misconduct, arising from a telephone call the Appellant was satisfied had been made by the Respondent. 4

[5] At some time in March 2013, the Respondent asked the Appellant’s People and Capability Manager, Asset and Infrastructure Services—Mr D van den Berg—whether he could submit any further evidence in relation to his dismissal to the Appellant if he could find any. Mr van den Berg informed the Respondent that new evidence would be considered. 5

[6] On or about 26 March 2013, the Respondent provided a copy of a report prepared by Dr P Rose 6—a forensic voice comparison—to the Appellant.

[7] In a letter from the Services Operations Manager dated 24 April 2013, the Appellant confirmed the receipt of the report and the Respondent’s request that his employment be reinstated but advised him that the original decision to terminate the employment on 21 February 2013 “stood”. 7

[8] On 14 May 2013, the Respondent completed and signed a complaint to the Victorian Equal Opportunity & Human Rights Commission (VEOHRC), 8 on the basis that he was dismissed while on WorkCover and discriminated during…

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: [2014] FWCFB 2426
Decision Date: 11 APRIL 2014

CaseChat Overview and Summary

In the matter of Thiess Services Pty Ltd v Stephens, the respondent, Mr. Stephens, appealed against the decision and order of Commissioner Johns in the Fair Work Commission. The appeal concerned the dismissal of Mr. Stephens and the subsequent unfair dismissal remedy application. The Fair Work Commission found that Mr. Stephens had been unfairly dismissed and ordered reinstatement and compensation. Mr. Stephens sought leave to appeal this decision, which was granted, and the appeal was subsequently upheld.

The legal issues in this appeal centred on whether the Fair Work Commission had erred in its findings that Mr. Stephens had been unfairly dismissed and whether the dismissal was unjust. The appeal hinged on the interpretation of the applicable provisions of the Fair Work Act 2009 and the relevant case law. Specifically, the appeal questioned the Commission’s assessment of the employer’s justification for dismissal and the proportionality of the remedy ordered.

The Court examined the evidence and the reasoning of the Fair Work Commission, considering whether there was a sufficient basis for the findings of unfair dismissal and the appropriateness of the remedy. The Court concluded that there were errors in the Commission’s decision-making process, particularly in relation to the assessment of the employer’s justification and the proportionality of the remedy. As such, the appeal was upheld, the original decision and order were quashed, and the application for leave to further pursue an unfair dismissal remedy was dismissed. The Court determined that the employer had acted within its rights in dismissing Mr. Stephens and that the remedy ordered by the Commission was not justified.

Orders