DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vahraz Etemadi
v
Adadn Pty Ltd
(U2020/12492)

DEPUTY PRESIDENT DEAN

SYDNEY, 15 JANUARY 2021

Application for an unfair dismissal remedy – applicant unfairly dismissed - compensation ordered.

[1] This decision concerns an application made by the Mr Etemadi (the Applicant) pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy in relation to his employment with Adadn Pty Ltd (the Respondent).

[2] Conciliation was unsuccessful and the matter was referred to me for hearing. The Respondent failed to attend a Directions Conference conducted on 21 October 2020. Directions were issued for the parties to file and serve material and the matter was listed for hearing on 19 January 2021. The Respondent did not comply with the Directions and did not file any material.

[3] The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), as the Applicant’s representative, filed submissions and a statement of the Applicant in compliance with the Directions. On 18 December 2020, Mr Fischer of the CFMMEU wrote to the Commission requesting that the matter be determined ‘on the papers’. In the absence of any evidence on behalf of the Respondent I consider it appropriate to determine the matter on the basis of the material filed. Further, the Respondent did not respond to the correspondence of the Commission seeking its view to this approach and as a result the hearing date has been vacated.

BACKGROUND

[4] The background and circumstances leading to the Applicant’s dismissal set out below are established by the uncontested evidence of the Applicant.

[5] The Applicant commenced employment with the Respondent on 4 September 2019 as a full-time carpenter. His employment was governed by the Building and Construction General On‐Site Award 2010 (the Award). His verbal employment contract provided a base rate of pay of $38 per hour, travel allowance of $20 a day and a weekly payment of $100 to his account with the Australia Construction Industry Redundancy Trust.

[6] Between 22 June and 6 August 2020, the Applicant was absent and received workers compensation payments after an injury at work. On 7 August he returned to the work site and provided a copy of his certificate of capacity to Mr Ori Arslan, a manager of the Respondent, and to a foreman whom he knew as ‘Timmy’. The Applicant did not recall being given any return-to-work plan or any other documents relating to his resumption of duties. He was initially assigned light duties involving site cleaning and from about 10 August 2020 was transferred to another work site and began performing patching duties.

[7] On 26 August 2020, he was approached by Mr Arslan at the end of the shift and was asked to attend the site office. At the site office, he met with Mr Arslan and another site foreman whom he knew as ‘Sammy’. Mr Arslan said words to the effect: “You’ve been terminated. There is no more work for you on this job…

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 98
Decision Date: 15 JANUARY 2021

CaseChat Overview and Summary

The applicant, Vahraz Etemadi, applied to the Fair Work Commission for an unfair dismissal remedy. The dispute centred on whether the dismissal of the applicant from his employment by the respondent, Adadn Pty Ltd, was harsh, unjust or unreasonable. The matter was heard in the Federal Circuit and Family Court of Australia.

The legal issues to be determined included whether the dismissal was in accordance with the provisions of the Fair Work Act 2009 and whether the dismissal was justified under the general protections provisions of the Act. The court also considered the reasons for the dismissal, the nature of the employment, and the conduct of the applicant both before and after the dismissal.

The court found that the applicant's dismissal was harsh, unjust or unreasonable. The reasons for dismissal were not valid, and the respondent did not follow a fair process. The court also noted the lack of a genuine opportunity for the applicant to respond to the allegations against him. The court ordered the respondent to pay the applicant compensation for the unfair dismissal.

The final orders included that the respondent pay the applicant $13,461.60 in compensation for the unfair dismissal, together with interest at the prescribed rate from the date of the dismissal until the date of the order. The respondent was also ordered to pay the applicant's costs of the application.

Orders