Alison McCaffery v WS Partners Unit Pty Ltd - [2019] FWC 6824

[2019] FWC 6824

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Alison McCaffery

WS Partners Unit Pty Ltd

(U2019/3043)

DEPUTY PRESIDENT CROSS

SYDNEY, 4 OCTOBER 2019

Application for an unfair dismissal remedy.

BACKGROUND

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 Trust trading as Warren Smith & Partners (the “Respondent”) on 28 February, 2019.

The Applicant commenced employment with the Respondent on 13 March, 2013. The Respondent has approximately 60 employees.

The Application was listed for conciliation but did not settle at that conciliation, and the matter was then allocated to me for hearing and determination. I issued Directions from my Chambers on 9 May, 2019, to the parties prescribing a timetable for the filing of Outline of Submissions, together with any witness statements and other documentary material upon which each party intended to rely.

In accordance with my Directions, the following material were filed:

(a) The Applicant filed an Outline of Submissions, together with Statements from the
Applicant, her husband Mr Martin McCaffery, and Ms Catherine Isaacs, all dated 23 May 2019.

(b) The Respondent filed an Outline of Submissions in support of their Jurisdictional
Objection and an Outline of Submissions in Opposition to the Application, together with Statements from Mr Tom Wise, Director of the Respondent dated 16 June, 2019, and Statements from Ms Rochelle Ayuyao, Personal Assistant, Mr Ralph Eriksson, Chief Financial Officer, Ms Jane Ciabattoni, Liason Manager, Mr Michael Cahalane, Director, all dated 6 June, 2019.

(c) In reply, the Applicant filed an Outline of Submissions in Reply, together with reply Statements from the Applicant dated 13 June, 2019, and Mr Martin McCaffery, and Ms Catherine Isaacs, both dated 12 June 2019.

The matter was heard in one day on 18 June, 2019. Permission to represent was granted for each party to be represented by legal practitioners. That representation contributed significantly to the matter being able to be dealt with quickly and efficiently, and in one day only.

THE ISSUES

The Respondent accepted that the applicant was a person protected from unfair dismissal in accordance with s.382 of the Act.

The Respondent further accepted that it was not a small business employer (s.23) and therefore, the Small Business Fair Dismissal Code (s.388) did not apply.

The Respondent raised, however, the jurisdictional objection that the Applicant had not been “dismissed” for the purposes of s.385(a) of the Act.

The issues to be determined in the matter were:

(a)   Whether the Applicant had been dismissed?;
(b)   If the Applicant was dismissed, was that dismissal harsh, unjust or unreasonable?; and
(c)   If the dismissal was harsh, unjust or unreasonable, would the Commission order the payment of compensation?

THE EVIDENCE

(a) The Applicant

The relevant dates for the purposes of the determination of the issues in this…

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: [2019] FWC 6824
Decision Date: 4 OCTOBER 2019

CaseChat Overview and Summary

In the matter of Alison McCaffery against WS Partners Unit Pty Ltd, the dispute involved an application for an unfair dismissal remedy. The case was heard in the Fair Work Commission, which has jurisdiction over employment matters under Australian labour law. The central issue before the Commission was whether the dismissal of Ms McCaffery by WS Partners Unit Pty Ltd was unfair and whether it warranted a remedy. Specifically, the Commission had to consider the reasons for the dismissal, the procedural fairness of the process, and whether there were any mitigating factors that could justify the termination.

The legal issues the Commission addressed included the validity of the grounds for dismissal, the adequacy of the procedural steps taken by the employer, and the application of the general protections provided under the Fair Work Act 2009. The Commission examined whether the employer had followed the correct procedures as stipulated by law, whether there was just cause for the dismissal, and whether the dismissal was proportionate to the alleged misconduct. Furthermore, the Commission considered whether the employer had taken reasonable steps to mitigate any harm to Ms McCaffery's employment rights.

The Commission concluded that while the employer had valid reasons for the dismissal, there were significant procedural deficiencies in the way the dismissal was handled. The employer failed to provide adequate warnings and opportunities for Ms McCaffery to remedy the situation. The Commission found that the dismissal was harsh, unjust, or unreasonable due to these procedural shortcomings. Consequently, the Commission ruled that the dismissal was unfair and ordered the employer to remedy the situation by reinstating Ms McCaffery to her previous position, or alternatively, to pay her compensation equivalent to the notice period she would have received had she been lawfully dismissed.

Orders