Calton and United Breweries win FWC Appeal

Carlton and United Breweries (CUB) have won an appeal at the Full Bench of the Fair Work Commission to overturn the decision to re-instate an employee following an unfair dismissal claim.

Facts

Mr Johnson was hired by Chelgrave Contracting Australia Pty Ltd (Chelgrave) as a maintenance fitter for CUB from May 2017 until he was dismissed on 28 May 2020. In November 2020 Mr Johnson won an unfair dismissal against Chelgrave with the Fair Work Commission reasoning the dismissal was harsh, unjust and unreasonable, given “the penalty of dismissal was disproportionate” to the circumstances and Mr Johnson was not afforded an opportunity to provide a response prior to dismissal.

The Fair Work Commission considered an appropriate remedy to be reinstatement pursuant to section 391(1) of the Fair Work Act 2009 together with payment of lost remuneration. Chelgrave’s arguments of their lack of contractual power to compel CUB to re-engage Mr Johnson was not accepted by the Commissioner as no evidence of Chelgrave’s contract with CUB was presented to the Commissioner.

On 8 February 2021 the Full Bench of the Fair Work Commission accepted CUB’s argument Chelgrave had no contractual power to force CUB to allow Mr Johnson to access their site and continue his employment. Although CUB was not party to the initial unfair dismissal proceedings, CUB was recognised as a person aggrieved due to the reinstatement order. Evidence of the contract between CUB and Chelgrave was submitted to prove the order for reinstatement “would be impractical and inappropriate because the Respondent was incapacitated from fulfilling his duties”.

Therefore, the appeal was upheld and the order to reinstate Mr Johnson was quashed.

Key Takeaways

This case reminds us reinstatement orders are not always possible and the relationship between the employee, employer, and place of business need to be considered to determine whether reinstatement is possible.

It is also important to always be prepared with the correct documentation and evidence when responding to a Fair Work unfair dismissal claim. This appeal would likely not have be necessary if Chelgrave had correctly demonstrated to the Fair Work Commission their lack of contractual power over CUB to enforce a reinstatement order.

Read the full decision here