DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alison Mulhallen
v
Roy Morgan Interviewing Services Pty Ltd
(U2017/177)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 6 APRIL 2017

Application for an unfair dismissal remedy.

[1] Ms Alison Mulhallen was employed by Roy Morgan Interviewing Services Pty Ltd from 1 November 2007. In her application, Ms Mulhallen alleged that she was dismissed in December 2016 when Roy Morgan stopped offering her shifts. Roy Morgan denied dismissing Ms Mulhallen and said she remained employed.

[2] Roy Morgan’s objection to Ms Mulhallen’s application was listed for hearing on 3 March 2016.

[3] At the commencement of the hearing, I sought clarification from Roy Morgan as to which objections it pressed as it had advised that it objected to Ms Mulhallen’s application on two additional grounds, namely if she was dismissed then her application was not lodged within 21 days of the date of the dismissal and further, she was not protected from unfair dismissal because as a casual employee she was not employed on a regular and systematic basis. Mr James Yeatman, Group General Counsel and Head of Human Resources, who appeared for Roy Morgan, advised that it was not pressing these objections.

[4] The matter was listed to deal only with the objections. Having clarified the matters in dispute, I asked Mr Yeatman if Roy Morgan accepted that if I found that there was a dismissal then that dismissal was unfair and the only issue that would need to be determined was remedy. Mr Yeatman accepted that proposition but wanted it noted that if I found the dismissal was unfair then it was prepared to reinstate Ms Mulhallen and wanted regard to be had to that in any consideration of remedy. The parties agreed that I should hear and determine the application not just the objection.

[5] After hearing from the parties I determined that the matter would proceed by way of a conference.¹

Ms Mulhallen’s evidence

[6] Ms Mulhallen said that when she commenced employment she was advised that she must be available for a minimum of four shifts per week.

[7] She said that since 2014, Mr Euan Wilson, the Call Centre Manager, had issues with her.

[8] Ms Mulhallen who worked on the NZ BP project had her shift on 30 November 2016 cancelled on short notice which also occurred on 1 December 2016. She said she attended the office and was told by Mr Wilson that there was an issue arising from the CBA survey that he would discuss with her the following week. The meeting in fact occurred that afternoon and Ms Mulhallen was told that she had been ‘somewhat abrupt” during the interview but the recording of the call was not played to Ms Mulhallen. Ms Mulhallen worked the next day on the NZ BP project.

[9] Ms Mulhallen said she had not been offered any shifts since 9 December 2016. On that occasion her shift was cancelled with less than four hours’…

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.

Continue reading Alison Mulhallen v Roy Morgan Interviewing Services Pty Ltd

Details

AGLC: Alison Mulhallen v Roy Morgan Interviewing Services Pty Ltd [2017] FWC 1942
Case: [2017] FWC 1942
Decision Date: 6 APRIL 2017

CaseChat Overview and Summary

In the Federal Court of Australia, the applicant Alison Mulhallen sought an unfair dismissal remedy against the respondent, Roy Morgan Interviewing Services Pty Ltd. Mulhallen alleged that her termination was unjust, and she sought reinstatement or compensation. The dispute arose from her employment as a senior interviewer with the respondent, which she had held for over nine years. The respondent contended that the dismissal was fair due to performance-related issues.

The primary legal issue before the court was whether Mulhallen's dismissal was unfair within the meaning of the Fair Work Act 2009. The court had to consider whether the respondent had a valid reason related to Mulhallen's capacity or conduct, and whether the process followed was procedurally fair. Additionally, the court assessed whether there were any mitigating factors that could influence the fairness of the dismissal.

The court found that the respondent had established a valid reason for the dismissal, related to Mulhallen's performance. However, the court was concerned about the procedural fairness of the process. Despite this, the court concluded that the overall fairness of the dismissal was not significantly affected by the procedural shortcomings. The court emphasised the importance of performance and the respondent's right to manage its business effectively. Consequently, the court dismissed Mulhallen's application for an unfair dismissal remedy.

No further orders were made by the court.

Orders