Weldemichael v Carbridge Pty Ltd - [2016] FWC 164

[2016] FWC 164

DECISION

Fair Work Act 2009
s.394—Unfair dismissal
Asmerom Weldemichael
v
Carbridge Pty Ltd T/A Easy Cart Australia
(U2015/11271)
COMMISSIONER ROBERTS	SYDNEY, 10 MARCH 2016

Application for relief from unfair dismissal – alleged misconduct – procedural fairness.

[1] This decision concerns an application lodged on 24 August 2015 by Mr Weldemichael

pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair

termination of his employment by Carbridge Pty Ltd T/A Easy Cart Australia (Carbridge or

the Company). The matter was the subject of unsuccessful conciliation by a Fair Work

Commission (the Commission) Conciliator on 23 September 2015. It was then set down for

arbitration hearing in Sydney on 4 December 2015. Directions were issued for the filing of

written submissions, witness statements and any supporting documents. The Transport

Workers’ Union of Australia (the TWU) filed an outline of submissions and witness

statements on behalf of the Applicant on 19 October 2015. The Company wrote to the

Commission on 20 October advising that it would not file any documents and would rely on

its response filed earlier (Form F3 Employer's Response to Unfair Dismissal Application).

[2] At the hearing on 4 December 2015, Mr Weldemichael was represented by Mr A Guy

of the TWU and Carbridge was represented by Mr L Todd (CEO). Mr Weldmichael and Mr I

Sherwood gave sworn evidence for the Applicant. Ms N Haddad gave sworn evidence for

Carbridge.

Background

[3] Mr Weldemichael commenced employment with Carbridge on 1 March 2011. He

worked at Sydney Airport (the Airport) and his duties included collecting and returning

luggage trolleys used by travellers. His employment was terminated on 3 August 2015,

following an incident on 29 July 2015 involving alleged misconduct in a conversation with

Ms Haddad. Mr Weldemichael denies that there was a valid reason for the termination of his

employment on the ground of misconduct or performance and seeks reinstatement and lost

remuneration.

Evidence

Mr Weldemichael

[2016] FWC 164

[4]

Mr Weldemichael gave sworn evidence and adopted a witness statement

. In his

statement, Mr Weldemichael provided details of his background. He arrived in Australia in

1995. From 1999, and prior to his employment with Carbridge from 1 March 2011, he worked

for the two predecessors of Carbridge and performed the same duties. He was engaged as a

full time employee.

[5] Mr Weldemichael stated that, prior to his engagement with Carbridge, he did not have

any issues in relation to his performance or conduct in the workplace. Attached to Mr

Weldemichael’s statement was a letter from Smartcarte’s Location Manager, Sydney, Mr A

Mir, dated 6 October 2015 in the following terms:

“Asmerom M. Weldemichael was employed by this company from July 2005 to
February 2011 as a customer service Representative (Trolley) at Sydney International
Terminal.
We have found Asmerom to be a very reliable employee who was extremely punctual
and had a good attendance record. He performed any task put to him with willingness
and was always…

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 Weldemichael v Carbridge Pty Ltd

Details

AGLC: Weldemichael v Carbridge Pty Ltd [2016] FWC 164
Case: [2016] FWC 164
Decision Date: 10 March 2016

CaseChat Overview and Summary

Asmerom Weldemichael brought an application for relief from unfair dismissal against Carbridge Pty Ltd T/A Easy Cart Australia, following his termination of employment on 3 August 2015. Mr Weldemichael's employment had been terminated by Carbridge on the basis of alleged misconduct on 29 July 2015. Mr Weldemichael denied the allegations of misconduct and claimed that he had not been provided with a proper opportunity to respond to the allegations against him. The central legal issues were whether Carbridge had a valid reason for terminating Mr Weldemichael's employment and whether the dismissal was procedurally fair.

The Commissioner found that Carbridge had a valid reason for terminating Mr Weldemichael's employment. The Commissioner accepted the evidence of Ms Haddad, who testified that Mr Weldemichael had displayed aggressive behaviour towards her on 29 July 2015. However, the Commissioner found that the termination process was procedurally flawed and unfair. Mr Weldemichael was not given an adequate opportunity to respond to the allegations against him and was not provided with a formal termination letter. The Commissioner concluded that the dismissal was harsh and unjust but not unreasonable.

In light of the findings, the Commissioner ordered that Carbridge pay Mr Weldemichael a total of $3581.52, being 4 weeks wages at the rate he was earning as at the date of the termination of his employment. The sum awarded was to be paid within 14 days of the date of the decision. The Commissioner did not order reinstatement as it was deemed impractical and undesirable given Mr Weldemichael's past behaviour.

Orders