Angela Clement v Grange Aged Care T/A the Grange Albury

[2015] FWC 2031

[2015] FWC 2031

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angela Clement
v
Grange Aged Care T/A The Grange Albury
(U2014/12942)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 2 APRIL 2015

Application for relief from unfair dismissal.

[1] On 30 September 2014 Ms Angela Clement filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] The matter was not conciliated. The nominated employer has not responded to the application.

[3] The matter was listed for an extension of time conference/hearing. The jurisdictional issue was not contested and time was extended.

[4] The matter has now been allocated to me for decision on the merits of the application.

[5] The employer has not filed submissions or witness statements, or contradicted the version of events advanced by the applicant. The applicant’s evidence is uncontested. A firm of solicitors did say in December 2014 that liquidators have been appointed but no further contact has been made by the respondent, and there is no record of such appointment.

[6] The applicant filed an outline of submissions and witness statement on 24 February 2014.

Harsh, Unjust or Unreasonable

[7] Section 387 provides:

Section 387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

[8] In this case the applicant states that she was terminated on 8 September 2014 and was told she was being dismissed for gross misconduct. She was accused by Gary Bares of destroying company documents and making a complaint about the facility. She denied and continues to deny the allegations 1. The applicant’s evidence is uncontradicted and I find that there was no valid reason for termination of her employment.

(b) whether the person was notified of that reason; and

[9] The applicant gave evidence that she was notified of the reason on the day of her dismissal. This evidence is uncontradicted, and I so find.

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

[10] The applicant gave evidence that she was told of the reasons for dismissal at the meeting on 8 September 2014. She denied the allegations at the time. On balance this does not seem to be sufficient opportunity to respond, given the sudden nature of the meeting, and the lack of supporting material.

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

[11] The applicant did not ask for a support person.

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

[12] There is no evidence of a prior warning about unsatisfactory performance. In any event the termination is based on alleged misconduct not unsatisfactory performance.

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

[13] This is a neutral factor.

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

[14] This is a neutral factor.

(h) any other matters that the FWC considers relevant.

[15] I have taken all material put to me into account. In my view the employee was not accorded a fair go all round. The dismissal was harsh, unjust or unreasonable.

Remedy

[16] The only submission put by Ms.Clement was that an order for compensation be made. I invite the applicant to put a submission on remedy, which addresses each of the factors in s.392 of the Act, within 7 days of this decision. I invite the respondent to indicate if it wishes to put a submission within 7 days of this decision. If the respondent does not respond I will make a decision ‘on the papers’ on the basis of the submissions put to me and in accordance with the Fair Work Act 2009.

DEPUTY PRESIDENT

 1   Witness statement of Angela Clement, paragraph 5

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