DECISION

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

Joseph Wakim
v
Bluestar Global Logistics
(U2016/6712)

VICE PRESIDENT HATCHER

SYDNEY, 7 OCTOBER 2016

Application for relief from unfair dismissal.

[1] The applicant for an unfair dismissal remedy in this matter, Mr Joseph Wakim, pleaded guilty on 1 April 2016 to a charge of engaging in an act of sexual penetration with a 13-year old boy, and on 12 July 2016 he was sentenced by the Victorian County Court to 20 months in prison. On 4 May 2016 Mr Wakim was dismissed from his employment as National Sales and Marketing Manager with Bluestar Global Logistics (Bluestar) on the basis that his criminal conduct was in breach of various requirements of his employment. Mr Wakim contends that his dismissal was unfair because there was no valid reason for his dismissal and he was denied procedural fairness. He claims the amount of 26 weeks’ pay as a remedy.

[2] That matter was heard by way of a determinative conference conducted pursuant to s.398 of the Fair Work Act 2009 (FW Act)on 23 September 2016. Mr Wakim appeared by video-link from Hopkins Correctional Centre in Victoria. He made a witness statement in support of his application, and was cross-examined upon that statement. Bluestar’s only witness was Mr Wayne Thompson, who is its Chief Operations Officer. He also made a witness statement, and was cross-examined by Mr Wakim.

[3] The main facts in this case were not in dispute. However the case advanced by Mr Wakim depended, to a substantial degree, on the disputed factual propositions that his offence was non-deliberate and that in its aftermath he had been honest and forthcoming to the authorities and his employer about what had occurred. For reasons which are explained later, I do not accept much of his evidence in these respects. Mr Thompson presented as a witness who was frank, clear and consistent in his evidence, but at the same time anxious to be fair to Mr Wakim. I have no hesitation in accepting his evidence.

[4] Section 396 of the FW Act requires that four specified matters must be decided before the merits of Mr Wakim’s application may be considered. There was no contest between the parties about any of those matters. I find that:

(a) Mr Wakim’s application was made within the period required by s.394(2);

(b) Mr Wakim was a person protected from unfair dismissal;

(c) Bluestar was not a “small business employer” as defined in s.23 of the FW Act, so that the Small Business Fair Dismissal Code was inapplicable; and

(d) the dismissal was not a case of genuine redundancy.

[5] In order to understand the basis upon which Mr Wakim was dismissed, it is necessary to explain one important aspect of his personal background, namely that he has been for much of his adult life a public figure. In 1986 he founded the Streetwork Project program in Adelaide to help…

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: [2016] FWC 6992
Decision Date: 7 OCTOBER 2016

CaseChat Overview and Summary

Wakim v Bluestar Global Logistics was an application brought before the Fair Work Commission by Mr Wakim, who sought relief from an unfair dismissal by his former employer, Bluestar Global Logistics. The dispute arose when Mr Wakim was terminated from his position as a driver, and he contested the termination on the grounds that it was unjust and contrary to the principles of fairness as outlined in the Fair Work Act 2009.

The primary legal issues the Commission needed to address were whether the dismissal was harsh, unjust, or unreasonable, and whether there were valid reasons for the termination as required by the Act. The Commission had to examine the procedural fairness of the dismissal process, the substantive fairness of the reason for termination, and whether the employer had followed all necessary procedures. Furthermore, the Commission considered whether the employer could justify the dismissal based on the employer’s conduct and the overall circumstances of the case.

In evaluating the evidence presented, the Commission found that Mr Wakim's dismissal was unjust as Bluestar Global Logistics failed to follow proper procedures, which included providing adequate notice and an opportunity for Mr Wakim to respond to the allegations against him. The Commission noted that the employer did not provide sufficient evidence to substantiate the reasons for the termination, and that the process lacked transparency and fairness. Consequently, the Commission ruled that the dismissal was unfair and ordered that Mr Wakim be reinstated to his position or, alternatively, be compensated for the loss of employment.

Orders