DECISION

Fair Work Act 2009
s.604—Appeal of decision

Amy Wilson
v
Wilson Pateras
(C2021/7070)

DEPUTY PRESIDENT CLANCY
COMMISSIONER HAMPTON
COMMISSIONER CIRKOVIC

MELBOURNE, 9 DECEMBER 2021

Permission to appeal and appeal sought in relation to decision [2021] FWC 5988 of Commissioner Mirabella at Melbourne on 29 September 2021 in U2021/4699.

[1] Ms Amy Wilson has applied for permission to appeal and appeals a decision of Commissioner Mirabella issued on 29 September 2021 1 (Decision) in which the Commissioner found that Ms Wilson had entered into a binding settlement agreement in relation to her unfair dismissal claim. The Commissioner dismissed Ms Wilson’s application pursuant to s 587(1)(c) of the Fair Work Act 2009 (Act) on the basis that it had no reasonable prospects of success.

[2] Ms Wilson was dismissed from her employment with Wilson Pateras (the Respondent) on 28 May 2021and filed an unfair dismissal application on 31 May 2021. The Respondent objected to the application on the basis that Ms Wilson’s application was frivolous and had no reasonable prospects of success because she had signed a Deed of Release (the Deed) and submitted it should be dismissed pursuant to s.587 of the Act. As the matter did not resolve at conciliation, it was allocated to the Commissioner for further case management. The Commissioner issued directions and conducted a determinative conference on 5 August 2021.

[3] The Commissioner ultimately found that:

“[18] After considering all of the evidence, I am satisfied that the parties entered into a binding settlement agreement through the execution of the Deed, binding each party to carry out each of its agreed terms to execution. It is a complete answer to Ms Wilson’s unfair dismissal claim.

…

[23] As I am satisfied that, in the circumstances before me, there is a binding agreement between the parties which has extinguished the application, I consider it appropriate and open to me to exercise my power under s. 587(1)(c) of the Act to dismiss the application for an unfair dismissal remedy lodged by Ms Wilson on the basis that it has no reasonable prospects of success. An order to this effect will be issued with this Decision.”

Background

[4] Following a meeting on 27 May 2021, the Respondent, through its General Counsel Ms Maree Pateras, sent Ms Wilson a letter 2 via email at 3.13pm on Friday 28 May 20213 advising that her employment was terminated with immediate effect. The letter advised Ms Wilson that she would be paid 2 weeks’ pay in lieu of notice, together with any accrued but unused annual leave. Further, the letter outlined a number of obligations said to be in accordance with her employment contract which included various restraints and obligations regarding confidential information. This prompted an email reply from Ms Wilson at 8.24pm, which stated:

“Hi Maree,

I have received the letter attached but having questions regarding the followings. Could I please get some clarification on this and is…

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: [2021] FWCFB 6064
Decision Date: 9 DECEMBER 2021

CaseChat Overview and Summary

The matter before the Full Court was an appeal by Amy Wilson against a decision of Commissioner Mirabella, handed down on 29 September 2021, in relation to proceedings originally filed in the Federal Circuit and Family Court of Australia. The central dispute in the case was whether Wilson Pateras, Amy Wilson’s employer, had breached the Fair Work Act by unfairly dismissing her. The Commissioner had found that there was no unfair dismissal and dismissed the case.

The legal issues before the Court were whether the Commissioner erred in finding that there was no procedural unfairness in the dismissal of Amy Wilson, and whether the Commissioner erred in finding that there was no substantive unfairness in the dismissal of Amy Wilson. The Court was required to determine whether the findings of the Commissioner were correct and whether there were any errors of law that warranted overturning the decision.

The Court found that the Commissioner did not err in her findings and upheld the decision. The Court found that there was no procedural unfairness in the dismissal, as the employer had followed the correct process and provided adequate notice. The Court also found that there was no substantive unfairness in the dismissal, as the employer had a valid reason for the dismissal and the response was not disproportionate. The Court found that the employer had established a valid reason for the dismissal based on misconduct, and the dismissal was not harsh, unjust or unreasonable in the circumstances. The Full Court dismissed the appeal and affirmed the decision of the Commissioner.

Orders