Wehbe v Home Doctor Australia Pty Ltd

[2015] FCCA 461

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEHBE v HOME DOCTOR AUSTRALIA PTY LTD [2015] FCCA 461

Catchwords:

INDUSTRIAL LAW – Fair work – small claim application – no wrongful dismissal – application dismissed.

Legislation:  
Australian Fair Work Act 2009

Applicant: KEVIN WEHBE

Respondent: HOME DOCTOR AUSTRALIA PTY LTD (ACN 156 670 843)

File Number: SYG 175 of 2015

Judgment of: Judge Street

Hearing date: 26 February 2015

Date of Last Submission: 26 February 2015

Delivered at: Sydney

Delivered on: 26 February 2015

REPRESENTATION

Counsel for the Applicant: In Person

Solicitors for the Applicant: Self-Represented

Counsel for the Respondent: Mr Wenban

Solicitors for the Respondent: HF Legal Services

ORDERS

1. That Home Doctor Australia Pty Limited (ACN 156 670 843) be joined as the respondent in this case in substitution for Dr Bannerman and dispense with the need for service or other amendment. 

2. The proceedings are dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 175 of 2015

KEVIN WEHBE

Applicant

And

HOME DOCTOR AUSTRALIA PTY LTD (ACN 156 670 843)

Respondent

REASONS FOR JUDGMENT

1. This is a small claim application brought pursuant to the Court’s jurisdiction conferred under s.566 of the Australian Fair Work Act 2009.

2. The application was a small claim application in respect of which there were a series of small claims advanced and those claims, in terms of the remedies, were set out in a schedule. The claims all arise out of an alleged wrongful dismissal. There was a letter of dismissal served on Mr Wehbe pursuant to a contract of employment he was entered into on 24 June 2014 and consistent with the contract of employment, gave him four weeks notice.

3. The letter identified that he was being dismissed because of inappropriate conduct in the workplace. 

4. The Court heard evidence from Dr Bannerman who was the corporate mind of the proper respondent called Home Doctor Australia Pty Ltd which entity was joined in substitution for Dr Bannerman. The court foreshadowed as a small claim with a likely no costs outcome that it would adopt an expedited hearing, would hot tub both parties to hear evidence on the critical issues and deliver a decision. Dr Bannerman and the applicant were both were sworn and gave evidence about the circumstances relating to the dismissal at the same time. The Court assisted each party respond to the central issues concerning the dismissal with an opportunity to be heard and to constitute a fair but expeditious hearing on the merits. 

5. In relation to that dismissal, there was an issue raised by the applicant as to whether or not any reason was given for that dismissal.  Initially, the applicant said there was not any reason given and in his application had said the dismissal as made without referencing reasons of misconduct or performance and alleged that a reason was never at any stage brought up at all.  It is clear from the evidence of Dr Bannerman that there was raised at the meeting in the presence of the applicant a reason of bullying behaviour. The veracity of this reason having in fact been given is clear from an admission in what the applicant said:

   I became quite emotional about the lies being told.

6. It is clear from the evidence that a reason was given to the applicant reason for the dismissal of the applicant, that the alleged misconduct was raised and, in those circumstances, that impacts adversely upon the credit of the applicant in respect of the claims advanced. 

7. Dr Bannerman gave evidence which I accept that the action taken of dismissal was not for any reason which would be a proscribed reason in respect of s.340 of the Australian Fair Work Act 2009. The dismissal, in these circumstances, is one which I am satisfied the respondent has proved was not unlawful action taken under the Act.

8. The dismissal was one taken pursuant to the terms of a letter of employment in respect of which, on the face of it, it seems the employment terms were more generous than the award provisions.  In those circumstances and in that regard I take into account what appears to have been the hourly rate that the applicant was paid in respect of the four weeks notice, it is not necessary that the applicant be paid further leave in respect of that.  The issue relating to tea breaks was not an issue that the applicant had raised prior to dismissal.  I do not accept that any of the other claims are claims that arise from any adverse conduct by the respondent. Accordingly the application is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  3 March 2015