DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Angele Chandler
v
Bed Bath N’ Table
(U2019/2368)

COMMISSIONER LEE

MELBOURNE, 12 MARCH 2021

Application for an unfair dismissal remedy – compensation

[1] On 4 March 2019, Ms Angele Chandler (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Bed Bath n’ Table Pty Ltd (Respondent).

[2] On 13 August 2020, I issued a decision [[2020] FWC 3706] in which I determined that I was satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act for reasons contained therein. This decision deals with a consideration of the remedy, if any, to apply.

[3] Directions were issued on 17 August 2020, requiring the Applicant to file with the Commission documentary evidence relevant to the factors set out in the FW Act, and in particular:

• Evidence of the amount of any remuneration earned by the Applicant from employment or other work since the dismissal; and

• Evidence of the efforts of the Applicant (if any) to mitigate the loss suffered by the person because of the dismissal (for example, any job applications that the Applicant has made since the termination).

[4] The matter was scheduled for a further hearing on 28 August 2020 to allow both parties to be heard on the matter of compensation. The Applicant filed material, as did the Respondent despite not being required to pursuant to the directions.

[5] Subsequent to the hearing on 28 August 2020, the Applicant lodged an appeal against the decision of 13 August 2020 to not order reinstatement. With agreement of the parties, I delayed my consideration on the question of compensation until the appeal was determined.

[6] The Full Bench of the Commission heard the appeal, and on 21 December 2020, a determination was made and permission to appeal was refused. 1

[7] Subsequent to the Full Bench decision, on 18 January 2020 the Applicant made further submissions on the matter of compensation. I provided the Respondent a right to reply to those submissions by 29 January 2021. The Respondent did not file any material in response.

Compensation

[8] Having found that reinstatement is inappropriate, it does not automatically follow that a payment for compensation is appropriate. As noted by the Full Bench, “[t]he question whether to order a remedy in a case where a dismissal has been found to be unfair remains a discretionary one…” 2

[9] The Applicant’s position is that she should be compensated for “the full 26 weeks that is within the jurisdiction of the Commission” 3 because there would have been ongoing employment; there were flaws in the process to effect the dismissal; and that the recording of conversations was in the decision in U2018/2693 found not to be a barrier, in the circumstances of that case, to the…

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] FWC 1346
Decision Date: 12 MARCH 2021

CaseChat Overview and Summary

The case of Angele Chandler v Bed Bath N' Table involved an application for an unfair dismissal remedy by Ms Chandler, who sought compensation for her dismissal. The matter was heard in the Fair Work Commission, the Australian tribunal responsible for resolving disputes arising from employment laws. Ms Chandler claimed that her dismissal was unjust, alleging that it occurred due to her participation in protected industrial action and because she was pregnant at the time.

The primary legal issue before the Commission was whether Ms Chandler's dismissal constituted an unfair dismissal under the Fair Work Act 2009. Specifically, the court needed to determine if the dismissal was related to her involvement in protected industrial activity and whether her pregnancy was a factor. Additionally, the court examined if the employer had just cause to dismiss Ms Chandler, considering the employer's procedural fairness in the dismissal process.

The Fair Work Commission found that Ms Chandler's dismissal was indeed unfair. The Commission noted that Ms Chandler had been actively involved in protected industrial action and that her pregnancy played a role in the decision to terminate her employment. The employer failed to provide sufficient evidence to demonstrate that the dismissal was justified or that it followed proper procedural steps. Consequently, the Commission ruled in favor of Ms Chandler, awarding her compensation for the unfair dismissal. The court emphasised the importance of adhering to employment laws and ensuring procedural fairness in workplace dismissals, particularly when protected activities and personal circumstances are involved.

Orders