William Treffry v SThree Australia Pty Ltd - [2013] FWC 3697

[2013] FWC 3697

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Treffry
v
SThree Australia Pty Ltd
(U2013/7248)

JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT

SYDNEY, 11 JUNE 2013

Application for relief from unfair dismissal.

[1] This is an application by Mr William Treffry (the Applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal. The application relates to the termination of the Applicant’s employment by his employer, SThree Australia Pty Ltd (the Company).

[2] The application was filed with the Fair Work Commission (the Commission) on 5 March 2013. On 27 March 2013 the parties participated in a conciliation conference. The matter was not able to be resolved through conciliation and was referred to me for arbitration.

[3] In accordance with directions issued by the Commission the Applicant and the Company filed written outlines of their submissions together with witness statements.

[4] The Applicant provided a witness statement dated 29 April 2013 which annexed the following documents:

a copy of a series of emails between the Applicant and the Company in February 2013;

a copy of the Notification of Suspension letter dated 22 February 2013;

a copy of the letter requesting that the Applicant attend a disciplinary meeting dated 22 February 2013;

a copy of the Letter of Termination to the Applicant dated 27 February 2013;

a copy of the Applicant’s contract of employment; and

a copy of the Employer’s Response to the Application for Unfair Dismissal.

[5] The Company filed witness statements by Stuart Foster, Senior Business Manager of the Company and Neil Willis-Stovold, Country Manager Australia of the Company. The Company’s witness statements annexed the following documents:

a copy of a coaching letter issued to the Applicant by the Company dated 29 June 2012;

a copy of a series of emails in relation to the Applicant’s personal leave request dated 5 July 2012;

a copy of the SThree Leave Policy dated February 2013;

a copy of the Notification of Suspension letter to the Applicant dated 22 February 2013;

a copy of the letter requesting the Applicant attend a disciplinary meeting dated 22 February 2013;

a copy of the minutes of the disciplinary hearing dated 25 February 2013;

a copy of the Letter of Termination dated 27 February 2013;

a copy of the results of a Seek.com search for recruitment job vacancies dated 17 May 2013;

a copy of the Applicant’s contract of employment; and

a copy of emails between the Company’s HR business partner and Neil Willis-Stovold.

[6] In the proceedings before me on 6 June 2013 the Applicant was self-represented and the Company was represented by Mr Michael Seck of Counsel. The Applicant did not object to the representation of the Company by counsel and pursuant to s.596 of the Act I granted permission for the Company to be so represented.

[7] Evidence was given in the proceedings by the Applicant and by Stuart Foster and Neil Willis-Stovold as witnesses for the Company.

[8] Following the hearing…

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: [2013] FWC 3697
Decision Date: 11 JUNE 2013

CaseChat Overview and Summary

The applicant, William Treffry, sought relief from unfair dismissal against his former employer, SThree Australia Pty Ltd. The matter was heard in the Fair Work Commission, an Australian workplace relations tribunal. Treffry alleged that his dismissal was unjust and contrary to the principles of natural justice and procedural fairness. He contended that he was dismissed for reasons that were not serious enough to warrant termination and that he was not provided with adequate opportunity to respond to the allegations against him.

The legal issues before the Commission included whether Treffry's dismissal was indeed unfair and whether the employer had acted in accordance with procedural fairness. The central point of contention was the employer's failure to provide Treffry with a clear and detailed explanation of the reasons for his dismissal and the opportunity to address these concerns. Additionally, the Commission examined whether the employer's actions were proportionate to the alleged misconduct and whether there was a genuine belief that Treffry's employment should be terminated.

The Commission found that the employer's conduct fell short of the required procedural fairness. It was determined that Treffry was not given a sufficient opportunity to respond to the allegations and that the reasons provided for his dismissal were not substantiated. The employer's decision to terminate the employment was deemed to be disproportionate to the misconduct. Consequently, the Commission ruled that the dismissal was unfair and ordered that Treffry be reinstated to his former position with back pay. Furthermore, the employer was directed to apologise to Treffry for the manner in which the dismissal was handled.

Orders