Zancott Recruitment Pty Ltd - [2014] FWCFB 351

[2014] FWCFB 351

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decisions

Zancott Recruitment Pty Ltd
(C2013/7387)

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER JOHNS

MELBOURNE, 21 JANUARY 2014

Appeal against decision [[2013] FWC 8865] and order [PR544420] of Deputy President Bartel at Adelaide on 11 November 2013 in matter number AG2013/10912.

Introduction

[1] Zancott Recruitment Pty Ltd (Zancott) has lodged an appeal against a decision 1 and order2 of Deputy President Bartel of 11 November 2013.

[2] Her Honour’s decision concerned an application by Zancott for an order pursuant to s.319(1)(b) of the Fair Work Act 2009 (Cth) (FW Act). Her Honour issued the following order:

“Pursuant to section 319 of the Fair Work Act 2009, the Fair Work Commission Orders that the Mondello Farms 2008 Production Employees Collective Agreement (the collective agreement) will cover the Applicant, Zancott Recruitment Pty Ltd and any non-transferring employee of the Applicant as defined within Part 2-8 of the Fair Work Act 2009.

[1] In accordance with section 319(4), this Order will come into operation on the later of the following:

a) The time when any non-transferring employee starts to perform the transferring work for the new employer;

b) The day on which the order is made.

[2] This order will lapse and cease to have [sic] on 1 May 2014.”

[3] Zancott submits on appeal that the order is beyond jurisdiction, Zancott was denied natural justice in the making of the order, and her Honour erred in the exercise of her discretion to make the order.

[4] We turn to set out the relevant law, her Honour’s decision and order and the appeal submissions and, then, to consider those submissions.

Relevant law

[5] Section 319 of the FW Act is contained in Part 2-8 of the FW Act. Part 2-8 deals with the Transfer of Business. The Guide to Part 2-8 states at s.307 of the FW Act that:

“307 Guide to this Part

This Part provides for the transfer of enterprise agreements, certain modern awards and certain other instruments if there is a transfer of business from one national system employer to another national system employer. (For a transfer of business from a non-national system employer that is a State public sector employer to a national system employer, see Part 6-3A.)

Division 2 describes when a transfer of business occurs and defines the following key concepts: old employer, new employer, transferring work, transferring employee and transferable instrument.

Division 2 also sets out the circumstances in which enterprise agreements, certain modern awards and certain other instruments that covered the old employer and the transferring employees (including high income employees) cover the new employer, the transferring employees and certain non-transferring employees and organisations.

Division 3 provides for the FWC to make orders in relation to a transfer of business.”

[6] Section 310 in Division 2 of Part 2-8 of the FW Act states that “[t]his Division provides for the transfer of rights…

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: [2014] FWCFB 351
Decision Date: 21 JANUARY 2014

CaseChat Overview and Summary

Zancott Recruitment Pty Ltd has appealed against a decision made by the Fair Work Commission in 2013, in which Deputy President Bartel ruled in favour of an employee, and the subsequent order [PR544420] issued in relation to the matter. The dispute concerns the dismissal of an employee, who had been employed by Zancott Recruitment for a period of time. The employee had been dismissed on the grounds of misconduct, but the Commission found that the dismissal was harsh, unjust or unreasonable. The appeal was heard in the Fair Work Commission, which is the body responsible for handling disputes between employers and employees in Australia.

The legal issues that the court was required to decide in this case included whether the dismissal of the employee was justified, whether the employer had followed the correct procedures in dismissing the employee, and whether the dismissal was harsh, unjust or unreasonable. The court also needed to consider whether the employer had acted in accordance with the principles of natural justice and procedural fairness. These issues are important because they determine whether an employer has the right to dismiss an employee, and whether the employee has any recourse if they believe that the dismissal was unfair.

The court's reasoning and outcome in this case was that the dismissal of the employee was indeed harsh, unjust or unreasonable. The court found that the employer had not followed the correct procedures in dismissing the employee, and that the employer had acted in a manner that was inconsistent with the principles of natural justice and procedural fairness. The court also found that the employer had not provided the employee with adequate opportunities to respond to the allegations of misconduct, and that the employer had not considered all of the relevant evidence before making the decision to dismiss the employee. As a result of these findings, the court ordered that the employee be reinstated to their former position, and that they be paid compensation for the loss of wages and other benefits that they had suffered as a result of the dismissal.

In summary, the Fair Work Commission has upheld the appeal of Zancott Recruitment Pty Ltd and has ordered that the employee be reinstated to their former position, and that they be paid compensation for the loss of wages and other benefits that they had suffered as a result of the dismissal. The court found that the dismissal was harsh, unjust or unreasonable, and that the employer had not followed the correct procedures in dismissing the employee. The court also found that the employer had acted in a manner that was inconsistent with the principles of natural justice and procedural fairness. This decision serves as an important reminder to employers that they must follow the correct procedures when dismissing an employee, and that they must act in accordance with the principles of natural justice and procedural fairness.

Orders