Zlatko Devcic v City Motor Transport Group - [2014] FWC 3040

[2014] FWC 3040 [Note: An appeal pursuant to s.604 (C2014/926) was lodged against this decision - refer to Full Bench decision dated 11 September 2014 [[2014] FWCFB 6074] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Zlatko Devcic
v
City Motor Transport Group
(U2013/12907)

COMMISSIONER CAMBRIDGE

SYDNEY, 9 MAY 2014

Unfair dismissal - jurisdictional objections - application filed more than 21 days after date of alleged resignation - dismissal or resignation - termination on the initiative of the employer - application filed within 21 days from date of dismissal - harsh, unjust and unreasonable dismissal - reinstatement inappropriate - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 22 August 2013. The application was made by Zlatko Marijan Devcic (the applicant) and the respondent employer is City Motor Transport Pty Ltd ABN: 73 085 240 875 (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 9 August 2013. Consequently, on its face the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. However, the employer asserted that the applicant had resigned from employment on or about 28 June 2013.

[3] The jurisdictional objection raised by the employer was initially listed for Hearing on 6 December 2013 before Drake SDP of the Fair Work Commission (the Commission). This Hearing did not proceed and the matter was reallocated to the Commission as constituted for determination of both the jurisdictional objections raised by the employer and the substantive application.

[4] The matter was the subject of unsuccessful conciliation conducted on 17 January 2014, and it has proceeded to arbitration before the Commission as constituted in a Hearing conducted in Sydney on 2 April 2014.

[5] At the Hearing held on 2 April, Mr S Borrow, solicitor from Leana Street Consulting, was granted permission to appear for the applicant. The applicant was the only witness called to provide evidence in support of the claim. The Commission also granted permission for the employer to be represented by Mr A Brown, a solicitor from Brown & Brown Lawyers. Mr Brown called one witness who provided evidence on behalf of the employer. In addition, the Commission admitted a witness statement of the employer’s Managing Director, Anatoly Kushnir, into evidence despite Mr Kushnir being unable to attend the Commission and give evidence as a witness.

Factual Background

[6] The applicant had worked for the employer for almost seven years. The applicant was employed in a position described as a Rental Manager.

[7] The employer is a small business with about twelve employees. The employer operates a motor vehicle rental company which specialises in the provision of prestige motor vehicles as replacements in circumstances involving accident insurance claims.

[8] On 13 June 2013…

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] FWC 3040
Decision Date: 9 MAY 2014

CaseChat Overview and Summary

The case involved Zlatko Devcic, who sought relief against the City Motor Transport Group for an alleged unfair dismissal. The Fair Work Commission (FWC) was tasked with determining whether the dismissal was unfair and, if so, what remedies should be awarded. The employer contested the application on jurisdictional grounds, arguing that the application was not filed within the requisite 21-day period after the date of the alleged dismissal. However, the employer also contended that if the application was deemed timely, the dismissal was not unfair as it occurred due to the employee's resignation. The FWC had to decide if the application was within the jurisdictional timeframe and whether the dismissal was unfair.

The FWC considered the employer's jurisdictional objections and determined that although the application was filed more than 21 days after the date of the alleged resignation, it was within 21 days from the date the employee was informed of the dismissal. This meant the application was timely filed. The FWC then examined whether the dismissal was unfair, focusing on whether the dismissal was on the employer's initiative or due to the employee's resignation. The FWC found that the dismissal was initiated by the employer and was therefore unfair. The FWC concluded that reinstatement was inappropriate, but compensation was warranted as the dismissal was harsh, unjust, and unreasonable.

The FWC ordered that the employer pay compensation to the employee for the unfair dismissal. The compensation was based on the employee's entitlements and the duration of the employment. The FWC did not order reinstatement, as it found that the employment relationship had been irretrievably broken due to the unfair dismissal. The decision highlights the importance of timely filing of applications with the FWC and the consequences of an unfair dismissal, particularly when the employer initiates the termination.

Orders