Johnston v The Trustee for The MTGI Trust [2014] FWC 7098

Fair Work Commission|2014-10-24|Before: Deputy President Sydney, President Sydney, Senior DP Sydney

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P34_2177) This included the making of representations and submissions to the Commission, other than in accordance with the directions issued, through a series of e-mails some of which were not copied by the respondent to the applicant or his solicitor.

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P42_3750) The applicant described his position as "senior field engineer". The respondent submitted that the applicant was employed as a salesman and that his ancillary role could best be described as "field technician".

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P61_5588) See e.g. the e-mail sent by Mr Wallace on 16 January 2014 at 10:48pm, especially the first three paragraphs.

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P112_13459) See Transcript at PN92-94; PN231-258; PN426-427; PN441-446; and PN497.

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P129_15770) See the consideration of somewhat similar circumstances by the Federal Circuit Court in Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056 especially at [52] - [59] per Judge Whelan.

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P130_16163) See s.107 of the Act. It is noted that in subsequent submissions it was put by the respondent that the applicant never claimed to have attempted to provide notice about personal/carer's leave to Mr Wallace until after 16 January 2014 (see Application submitted on an interlocutory basis by the respondent dated 20 August 2014). This contradicts the evidence given in the proceedings by Mr Kerr to the effect that the letter sent by the applicant on 12 December 2013 regarding personal/carer's leave was forwarded to Mr Wallace (see Transcript PN 930-953). The applicant received no response from the respondent to the letter and was not requested by the respondent to provide evidence in accordance with s.107(3).

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P133_17473) E.g. regarding domestic violence complaints and claims that the applicant had misled the Commission or perjured himself in his testimony: see Application submitted on an interlocutory basis by the respondent dated 20 August 2014; and e-mail dated 23 August 2014.

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P134_17944) See statement of David Johnston Exhibit M1 Annexure A. The Company ID on the payslip is for The Trustee for The MTGI Trust.

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P171_20806) The submission by the respondent made in an e-mail dated 23 August 2014 that the applicant was guilty of serious misconduct is dealt with later in this decision. The submission was not linked to the Small Business Fair Dismissal Code and was not supported by any evidence presented in the proceedings.

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P201_25086) See Mosey v Australian Custom Services [2002] AIRC 879 at [38] - [39], and O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 at [23].

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P237_29484) See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 144; Annetta v Ansett Australia (2000) 98 IR 233 at 235; Bo Vu v State of Victoria (2001) 110 IR 383 at [80]; Potter v WorkCover Corporation (2004) 133 IR 458 at [14]; Rail Corp (NSW) v Vrettos (2008) 176 IR 129 at [51].

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P240_29851) Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [13].

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P241_30013) Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [4] per Cowdroy J (with whom Marshall J agreed).

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P244_30302) Qantas Airways Ltd v Cornwall (1998) 83 IR 102 at 106; Rail Corp (NSW) v Vrettos (2008) 176 IR 129 at [51].

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P245_30918) Windsor Smith Ltd v Liu (Giudice J, Polites SDP and Gay C, Print Q3462, 13 July 1998); Smith v Moore Paragon Australia Pty Ltd [2004] AIRC 57; (2004) 130 IR 446 at [45]; Rail Corp (NSW) v El Hawat (2006) 156 IR 385 at [25].

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P263_35236) See e-mail from Mr Wallace to the applicant dated 16 January 2014 (attached to the Form F2 Unfair Dismissal Application).

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P279_38910) See Witness Statement of David Johnston Exhibit M1 at para 37.

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P288_39859) See Witness Statement of David Johnston Exhibit M1at paras 16 and 26.

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P293_40394) The evidence of Mr Kerr is that it had only two employees, the applicant and himself: see Transcript PN 1008-1017.

(https://www.fwc.gov.au/documents/decisionssigned/html/2014FWC7098.htm#P351_50221) It would seem that the applicant had an entitlement to over 275 hours of personal leave as at 6 January 2014 (see Exhibit M3, Applicant's Outline of Submissions in Reply, 21 July 2014, para 1.3)

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