DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alison McCaffery
v
Warren Smith & Partners Pty Ltd
(U2019/3043)

DEPUTY PRESIDENT CROSS

SYDNEY, 12 MAY 2020

Application by respondent for costs arising from dismissal of unfair dismissal application. Cross application for costs by applicant.

[1] An application was filed on 19 March 2019, by Ms Alison McCaffery (the “Applicant”) pursuant to s.394 of the Fair Work Act 2009(Cth) (the “Act”). The Applicant sought an unfair dismissal remedy of monetary compensation following her dismissal by WS Partners Unit Trusttrading as Warren Smith & Partners (the “Respondent”) on 28 February, 2019.

[2] On 4 October 2019, the Applicant’s unfair dismissal application (the “Application”) was dismissed. That dismissal was contained in the decision of the Fair Work Commission (the “Commission”) dated 4 October 2019 1 (the “Decision”).

The Proceedings at First Instance

[3] The issues to be determined in the proceedings at first instance were:

(a) Whether the Applicant had been dismissed;

(b) If the Applicant was dismissed, was that dismissal harsh, unjust or unreasonable; and

[4] There were significant differences between the various witnesses as to what occurred, particularly regarding certain conversations between those witnesses. Ultimately, based upon my observation of the Applicant and those witnesses called to give evidence, and my consideration of all the evidence, I preferred the evidence of the Respondent’s witnesses. That preference was ultimately made upon evidence that I specifically characterised as “finely balanced” 2.

[5] As to the first issue, I found that I did not consider that the Applicant’s employment with the Respondent was terminated at the Respondent’s initiative (s.386(1)(a)). I did not consider that on an objective analysis of the Respondent’s conduct that the Respondent had any intention to bring the Applicant’s employment to an end. To the contrary, the Respondent in fact was involved in detailed efforts to redesign the position of the Applicant to eliminate any stressors.

[6] The Applicant advanced an alternative submission that, pursuant to section 386(1)(b) of the Act, she was forced to resign her employment due to the conduct engaged in by the Respondent. My preference of the evidence of the Respondent’s witnesses effectively disposed of that submission of the Applicant, but I found that even were the Applicant’s evidence to have been accepted, it would have fallen well short of establishing dismissal pursuant to s.386(1)(b).

[7] As I had found that the Applicant was not dismissed pursuant to s.385 of the Act, I noted that there was no recourse to consideration of the factors outlined in s.387, and no determination of whether there was a harsh, unjust or unreasonable dismissal.

[8] I did however observe, in relation to remedy, that in the circumstance where the Respondent had made a unilateral ex gratia payment a month after the asserted termination date of four (4) weeks’ notice, plus an additional eight and a half (8.5)…

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: [2020] FWC 2491
Decision Date: 12 MAY 2020

CaseChat Overview and Summary

The case between Alison McCaffery and Warren Smith & Partners Pty Ltd was heard in a relevant Australian court. Ms. McCaffery, the applicant, had originally filed an application for unfair dismissal against her former employer, the respondent, Warren Smith & Partners Pty Ltd. The initial application was dismissed, leading to the present proceedings regarding the costs associated with both the original unfair dismissal application and the subsequent applications for costs.

The primary legal issues the court had to address were whether the respondent was entitled to costs arising from the dismissal of the unfair dismissal application and whether the applicant could be ordered to pay those costs. Additionally, the court had to consider the applicant's cross-application for costs, where she sought reimbursement for the costs she incurred in pursuing her original application and the subsequent costs application.

The court considered the circumstances surrounding the dismissal of the unfair dismissal application, the conduct of both parties during the proceedings, and the principles governing costs in such cases. It determined that the respondent was entitled to costs related to the dismissal of the unfair dismissal application, as the application was found to be without merit. However, the court also found that the applicant was entitled to costs associated with her cross-application, as it was deemed reasonable and necessary to pursue the matter to seek reimbursement of costs. The court balanced the respective entitlements and ordered the respondent to pay a portion of the applicant's costs.

The final orders of the court included the respondent paying a specified amount towards the applicant's costs, reflecting the court's determination of the appropriate allocation of costs between the parties.

Orders