Alyssa Lo v Maf Assist Limited - [2023] FWC 2605

[2023] FWC 2605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Alyssa Lo
v

Maf Assist Limited

(U2023/4435)

DEPUTY PRESIDENT SLEVIN

SYDNEY, 11 OCTOBER 2023

Application for an unfair dismissal remedy

Ms Alyssa Lo has made application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (FW Act). Ms Lo alleges that she was unfairly dismissed from her employment with MAF Assist Limited (MAF). Ms Lo seeks an order that she be paid compensation. MAF contends that Ms Lo was not dismissed but resigned. MAF further contends that if Ms Lo was dismissed the dismissal was not harsh, unjust or unreasonable.

At the hearing Ms Lo represented herself. MAF sought permission pursuant to s.596 of the Act to be legally represented. There was some complexity in the arguments MAF wished to put as to whether Ms Lo had been dismissed. Permission was granted as I was of the view that legal representation would enable the matter to be dealt with more efficiently.

When can the Commission order a remedy for unfair dismissal?

Section 390 provides that the Commission may order a person’s reinstatement, or the payment of compensation to a person if satisfied that the person was protected from unfair dismissal and the person has been unfairly dismissed. There was no argument that Ms Lo was protected from unfair dismissal, and I am satisfied that she was. The argument was that she was not dismissed or in the alternative she was not unfairly dismissed.

Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; an

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

It was not contended that MAF was a small business employer. Nor was it contended that Ms Lo’s termination was due to redundancy. Consequently, ss 385(c) and (d) do not apply.

The dispute is first, whether Ms Lo was dismissed and second, if she was dismissed, whether her dismissal was harsh, unjust or unreasonable.

Evidence

Ms Lo gave evidence in her case. That evidence comprised written statements and documentary evidence. Ms Lo was cross examined on her material. MAF relied on statements from four witnesses. Three were managers; Mr Edgar Voigts, Relationship Manager, Mr Kelvin Maistry, Finance Manager and, at the date of Ms Lo’s termination of employment, Interim General Manager, and Mr Kuren Galant, Human Resources Manager. Mr Galant provided two statements. A statement was also provided by Ms Lo’s Team Leader Mr Mike Swanton. Attached to the respondents’ statements were various documents. MAF’s witnesses were not cross examined.

Ms Lo was cross examined. I was invited to make credit findings in relation to Ms Lo. In particular, I was asked to find that she was not a frank or responsive witness. I did not regard Ms Lo…

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: [2023] FWC 2605
Decision Date: 11 OCTOBER 2023

CaseChat Overview and Summary

Alyssa Lo made an application for an unfair dismissal remedy against MAF Assist Limited, claiming that she was unfairly dismissed and seeking compensation. MAF argued that Ms Lo was not dismissed but resigned, and if she was dismissed, it was not harsh, unjust or unreasonable. The court had to determine whether Ms Lo was dismissed and if so, whether her dismissal was harsh, unjust or unreasonable.

The court found that Ms Lo was indeed dismissed. Ms Lo's email on May 12, 2023, did not constitute a resignation, but rather an indication of her intention to resign in the future. Ms Lo had not provided a notice of resignation and had in fact reconsidered and decided that she would not be resigning. The termination of Ms Lo's employment was at the initiative of MAF.

The court also found that the dismissal was harsh, unjust and unreasonable. There was no valid reason for the dismissal related to Ms Lo's capacity or conduct. Although there were concerns about Ms Lo's performance and her refusal to meet with managers, these did not constitute a valid reason for dismissal. Furthermore, Ms Lo was not warned that those issues would lead to dismissal, and the evidence showed that at the time of the dismissal MAF did not intend to dismiss Ms Lo over her performance.

Given that Ms Lo was unfairly dismissed, the court considered what remedy should be granted. The court found that reinstatement was inappropriate and decided to order the payment of compensation. The amount of compensation was calculated based on the loss suffered over a 12 month period, less the 4 weeks’ notice paid, resulting in an amount of $10,695.57. The court ordered the Respondent to pay this amount to the Applicant within 21 days of the date of this decision.

Orders