Zeb Dewson v Boom Logistics Ltd - [2013] FWC 760

[2013] FWC 760

FAIR WORK COMMISSION

DECISION NO.2

Fair Work Act 2009
s.394—Unfair dismissal

Zeb Dewson
v
Boom Logistics Ltd
(U2012/1190)

COMMISSIONER CAMBRIDGE

SYDNEY, 5 FEBRUARY 2013

Unfair dismissal - finding of unfair dismissal - reinstatement inappropriate - remedy of compensation.

[1] This Decision is made further to the Decision issued in this matter on 24 October 2012 [PR530509], (the primary Decision). In the primary Decision Fair Work Australia, now the Fair Work Commission (the Commission) made findings that the applicant, Zeb Dewson, had been unfairly dismissed by Boom Logistics Ltd (the employer) and that reinstatement was not an appropriate remedy. The question of an alternative remedy of monetary compensation was the subject of further evidence and submissions for determination in this Decision.

[2] The additional evidence included a Supplimental [sic] Statement of the applicant and a Further Witness Statement of one of the employer’s Managers, Mr Kosecki. These additional Statements were admitted without requirement to cross-examine either deponent.

[3] In summary, the additional evidence from the applicant provided details about other employment that he obtained some 5 days after his dismissal together with information concerning costs associated with relocation and housing associated with that new employment. The additional evidence from the employer concerned details of the housing arrangements of the applicant immediately following his dismissal and information regarding operational issues that have caused the employer to call for expressions of interest in voluntary redundancy.

The Applicant’s Case on Remedy

[4] The Construction, Forestry, Mining and Energy Union (CFMEU), made further submissions on behalf of the applicant which addressed the issue of remedy by way of compensation. These submissions referred to the relevant provisions of the Fair Work Act 2009 (the Act), and stated that an Order for compensation was entirely appropriate.

[5] The CFMEU submitted that as the employer was a large company an Order for compensation would not affect the viability of the employer. Further, the applicant had been employed for over 6 years and would have, according to the submissions of the CFMEU, continued in employment indefinitely. The applicant had mitigated his loss by gaining further employment which has generated remuneration of approximately $100 per week less than the employment from which he was unfairly dismissed and includes a casual loading.

[6] It was further submitted by the CFMEU that any Order of compensation made by the Commission should include various other costs directly incurred by the applicant as a result of his unfair dismissal. In this regard additional housing rental costs and removal expenses were quantified. The CFMEU also submitted that any Order of compensation should not be reduced on account of misconduct because the alleged misconduct relied upon by the employer was not confirmed by the Commission and the earlier misconduct which occurred at the Christmas party in 2010 did not contribute to the employer’s decision to dismiss the applicant.

[7] In addition, the CFMEU submitted that there was no component of shock, distress or humiliation attached to an Order for compensation that was calculated…

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 760
Decision Date: 5 FEBRUARY 2013

CaseChat Overview and Summary

Zeb Dewson, an employee, brought proceedings against Boom Logistics Ltd, his employer, before the Fair Work Commission. The dispute centred around his termination of employment, with Dewson contending that he was unfairly dismissed. Boom Logistics Ltd argued that the dismissal was justified under the provisions of the Fair Work Act 2009. The Commission was tasked with determining whether the dismissal was unfair and, if so, what remedy was appropriate.

The central legal issue before the Commission was whether the employer had valid grounds for terminating Dewson's employment, and if not, what remedy should be applied. The Commission needed to assess whether the employer had followed the correct procedures, and whether the termination was related to the employee's employment or activities. The Commission also had to consider if reinstatement was a suitable remedy and whether compensation was an appropriate alternative.

In delivering its decision, the Commission found that while the dismissal was unfair, reinstatement was not appropriate due to the strained relationship between the parties. The Commission concluded that the best course of action was to award compensation to Dewson. The employer's failure to follow proper procedures and the lack of a valid reason for dismissal supported this finding. The Commission determined that the appropriate remedy was to provide compensation to Dewson, reflecting his loss of income and other consequential damages.

The Fair Work Commission ordered that Boom Logistics Ltd pay Zeb Dewson compensation in the sum of $43,000, reflecting his lost earnings and other associated losses resulting from the unfair dismissal. The decision emphasised the importance of adhering to procedural fairness and the availability of compensation as a remedy when reinstatement is not feasible.

Orders