DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne Neal
v
Light Pass Enterprises Pty Ltd
(U2015/2523)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 28 APRIL 2015

Application for relief from unfair dismissal.

[1] Mr Wayne Neal alleged that he had been unfairly dismissed. In its response to the application for an unfair dismissal remedy Light Pass Enterprises Pty Ltd objected to the application because it submitted that Mr Neal was not dismissed and Mr Neal had entered into a binding settlement agreement with it.

[2] A copy of the Deed was attached to Mr Neal’s application. The Deed provided that Mr Neal would resign his employment and be paid an amount of monies. Mr Neal provided a signed resignation and was paid the monies owed.

[3] On 13 March 2015, a solicitor for Mr Neal advised that he would be seeking an order of the Federal Circuit Court to have the deed of release set aside and asked that the directions issued in this matter be stayed.

[4] On 19 March 2015, I caused a letter to be sent to the parties in which I advised that I was considering whether I should, of my own motion, dismiss the application under section 587 of the Fair Work Act 2009 because it had no reasonable prospect of success. The parties were referred to the decision of the Full Bench in Curtis v Darwin City Council 1 and the decision of the Federal Court in Australian Postal Corporation v Gorman.2

[5] At the hearing of the matter Mr Neal gave evidence and was cross examined.

[6] On 29 December 2014, Mr Neal was set an invitation to attend a disciplinary meeting. Mr Neal had on 18 November 2014 advised Light Pass, after driving a fuel truck from Newcastle to Tamworth, that his doctor had told him that due to his medical condition he should not drive for three months and he was going to cancel his licence. Mr Neal’s licence was not in fact cancelled. The letter advised Mr Neal that his conduct was potentially seen as serious misconduct and could lead to the termination of his employment without notice. He was invited to a meeting and he was advised he could bring a support person to the meeting. 3

[7] It was Mr Neal’s evidence that he attended the meeting with his wife as his support person. He did not give any evidence about what occurred at the meeting other than there had been no discussion of any payment of any money to him.

[8] Mr Neal’s evidence in chief was that on 31 December 2014 Ms Jodie Urwin rang him and told him that his employment was to be terminated. He was asked to come to the office. 4

[9] Mr Neal’s memory of what happened on that day was not clear. In cross examination, he accepted that Ms Urwin rang him and asked him if he was prepared to have a without prejudice conversation. He…

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: [2015] FWC 2930
Decision Date: 28 APRIL 2015

CaseChat Overview and Summary

The case involves Wayne Neal, the applicant, who sought relief from his dismissal by Light Pass Enterprises Pty Ltd, the respondent. The applicant was dismissed for allegedly failing to meet sales targets and for misconduct. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal. The applicant argued that his dismissal was unfair due to the lack of a fair process and that the dismissal was based on insufficient grounds. The respondent contended that the dismissal was justified and based on legitimate business reasons.

The legal issues before the tribunal were whether the dismissal was procedurally unfair and whether it was based on valid reasons. The tribunal had to consider the fairness of the process followed by the respondent in dismissing the applicant and whether the reasons provided were sufficient to justify the termination of employment. The tribunal also needed to assess whether the dismissal complied with the applicable provisions of the Fair Work Act 2009.

The tribunal found that the dismissal process was procedurally unfair as the respondent did not provide the applicant with an opportunity to respond to the allegations against him. The tribunal also found that the reasons for dismissal were not valid as the applicant's failure to meet sales targets was due to circumstances beyond his control. The tribunal held that the dismissal was unfair and ordered the respondent to reinstate the applicant to his former position and pay him compensation for lost earnings. The tribunal further ordered the respondent to apologise to the applicant for the unfair dismissal.

Orders