Self-represented former employee wins right to appeal termination

Self-represented former employee wins right to appeal termination

Self-represented former employee wins right to appeal termination

A Full Bench of the Fair Work Commission has granted an appeal on the basis of a lack of procedural fairness provided to a former air conditioning apprentice to challenge the decision of a single Commissioner that his termination was valid as a result of genuine redundancy.

In the initial decision, Deputy President Gerard Boyce accepted submissions on behalf of KTC Refrigeration & Air Conditioning Pty Ltd (KTC) that the business had to let the apprentice ‘NW’ go as they were suffering considerable financial hardship, and NW was only performing a small amount of maintenance works which the businesses’ owner could undertake.

NW represented himself in both the original case and the appeal before Vice President Ingrid Asbury, Deputy President Ian Masson, and Commissioner Michelle Bissett.

In his appeal submission, he claimed that the Deputy President had not afforded him natural justice, including a failure to be notified that KTC were to be legally represented, that their representative made personal insults during cross-examination, and that the Deputy President was involved in determinations based on significant errors of fact.

Essentially, the Full Bench agreed.

The first issue concerned the fact that prior to the initial hearing, KTC did not indicate that they intended to be legally represented. The Full Bench accepted that their intent had not been indicated on any forms submitted to the Commission and that it effectively denied NW the opportunity to seek legal representation.

The second issue was the failure of the Deputy President to intervene when KTC’s representative acted inappropriately by making slurs against NW, stating he was manic depressive and then telling him to ‘chill, calm down’. As the Full Bench noted, “The Deputy President otherwise made minimal attempts to intervene in the altercations between Mr M and the Appellant and hence ensure the proceedings were conducted in a fair and respectful manner”.

Further, the Full Bench expressed dissatisfaction with the Deputy President’s decision to conduct the hearing by telephone before the parties had filed their respective material.

With regard to NW’s termination, the Full Bench determined that the Deputy President erred in putting the onus on NW to prove that he could not be redeployed to other positions, particularly as there was no evidence presented of any discussion held with him about redeployment.

The Full Bench ordered the matter to be relisted to another Commissioner for rehearing.

NW v KTC Refrigeration & Air Conditioning Pty Ltd (C2023/2515) 25 October 2023

For queries about redundancy, termination, consultation, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 925 529, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

Ref: 404.1123

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