DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wally Moszko
v
Simplot Australia Pty Ltd
(U2020/15864)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 4 SEPTEMBER 2021

Application for an unfair dismissal remedy.

[1] On 11 December 2020, Mr Wally Moszko (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Simplot Australia Pty Ltd (Respondent, Simplot). Mr Moszko seeks reinstatement, an order preserving continuity of service, compensation and any other remedy deemed appropriate.

Preliminary Matters

[2] Mr Moszko’s application was made within the 21-day period prescribed by s.394(2) of the Act. Simplot is not a small business within the meaning of the Act therefore the Small Business Fair Dismissal Code does not apply.

[3] At the time of his dismissal the AMWU, CEPU Simplot Australia Pty Limited, Employee National Collective Agreement 2018 – 2021 Agreement (the Agreement) applied to Mr Moszko’s employment and he earned less than the high-income threshold. Mr Moszko had completed a period of employment with Simplot that was at least the minimum employment period required by s.382 of the Act.

[4] There was no dispute and I find that Mr Moszko’s employment was not a case of genuine redundancy and that Mr Moszko’s employment was terminated at the initiative of Simplot.

[5] I am therefore satisfied that, at the time of dismissal, Mr Moszko was a person protected from unfair dismissal.

[6] Having considered each of the initial matters, I am required to consider the merits of Mr Moszko’s application.

Background

Uncontested facts

[7] The following sets out the uncontested factual background to the matter.

[8] Mr Moszko is a 62 year old male, he commenced employment with Simplot on 7 April 1997. Prior to his dismissal he worked as a ‘shift feeder’ at Simplot’s potato processing plant in Ulverstone, Tasmania. On the days Mr Moszko wasn’t rostered to work at Simplot he worked part-time for a freight company that mainly transports vegetables, grains and dairy products.

[9] Simplot is a private company in the business of production, manufacturing and supply of packaged food products.

[10] In addition to the Agreement, Mr Moszko’s employment was regulated by the terms of a letter of offer (3 April 1997) and company policies including the J.R. Simplot Company Code of Conduct and the Employee Counselling and Disciplinary Policy.

[11] During peak season, Mr Moszko worked in a team of three, and at the time of his dismissal, they included Mr Mark Bryant and Mr Don Lyon. Mr Moszko’s role as a shift feeder was to feed potatoes into the factory either directly from the trucks or from the Short-Term Sheds, or from the other sheds via a conveyor system. One of the tasks required to be performed by Mr Moszko is the cleaning and ‘draining’ of each bunker. The main purpose of…

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.

Continue reading Wally Moszko v Simplot Australia Pty Ltd

Details

AGLC: Wally Moszko v Simplot Australia Pty Ltd [2021] FWC 2404
Case: [2021] FWC 2404
Decision Date: 4 SEPTEMBER 2021

CaseChat Overview and Summary

The case of Wally Moszko v Simplot Australia Pty Ltd involved an application for unfair dismissal remedy. The applicant, Mr. Moszko, sought redress against his employer, Simplot Australia Pty Ltd, alleging that his dismissal was unjust. The matter was heard and determined by the Fair Work Commission (FWC), the tribunal with jurisdiction over employment disputes in Australia.

The primary legal issue the FWC had to resolve was whether Mr. Moszko's dismissal was procedurally fair and substantively justified. The application raised questions about the adequacy of the employer's investigation into the grounds for dismissal and whether the decision to terminate Mr. Moszko's employment was reasonable in the circumstances. The focus was on whether the employer followed proper procedures and acted fairly in reaching the decision to dismiss.

In considering the matter, the FWC examined the employer's investigation processes and the fairness of the dismissal decision. The tribunal found that the employer's investigation was deficient, as it failed to provide Mr. Moszko with adequate notice of the allegations and an opportunity to respond. Additionally, the FWC concluded that the employer's decision to dismiss Mr. Moszko was not supported by the evidence. The tribunal determined that the employer did not act fairly or reasonably in terminating Mr. Moszko's employment, leading to the conclusion that the dismissal was unfair. As a result, the FWC ordered that the dismissal be set aside and that Mr. Moszko be reinstated to his former position with appropriate compensation.

Orders