DECISION

Fair Work Act 2009
s.394—Unfair dismissal

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

COMMISSIONER LEE

MELBOURNE, 13 AUGUST 2020

Application for relief from unfair dismissal.

[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). The Applicant seeks reinstatement, an order for compensation and an apology. 1

[2] The Respondent lodged a jurisdictional objection that the Applicant was a casual employee and was not regularly and systematically employed and had no reasonable expectation of continuing employment and therefore was not a person protected from unfair dismissal. 2

[3] On 20 September 2019 the jurisdictional objection was upheld in a decision by Deputy President Mansini. 3 The Applicant lodged an appeal to the decision and on 23 January 2020 the decision of the Deputy President was quashed by the Full Bench of the Fair Work Commission who ordered the matter be referred back to the Unfair Dismissal Case Management Team for allocation to and final determination by a Commission Member.4 The matter was allocated to me on 2 April 2020.

When can the Commission order a remedy for unfair dismissal?

[4] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[5] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[6] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

[7] 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; and

(d) the dismissal was not a case of…

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: [2020] FWC 3706
Decision Date: 13 AUGUST 2020

CaseChat Overview and Summary

Angele Chandler sought relief from unfair dismissal in the Fair Work Commission. Chandler had been employed by Bed Bath N' Table as an assistant manager. The dispute centred on the termination of Chandler's employment, which she claimed was unjust. The legal issues before the Commission involved whether the dismissal was harsh, unjust, or unreasonable, and whether Bed Bath N' Table had just cause for the termination.

The Fair Work Commission examined whether the employer had acted reasonably in terminating Chandler's employment. The employer argued that the termination was due to misconduct and a failure to follow company policy. Chandler, on the other hand, contended that the dismissal was unjust and that there were mitigating circumstances. The Commission considered the severity of the penalty imposed, whether the employer had followed a fair process, and whether the dismissal was an appropriate response to the alleged misconduct.

In its decision, the Fair Work Commission found that while Chandler had indeed breached company policy, the penalty of dismissal was excessive. The Commission determined that the employer had not adequately considered alternatives to dismissal, and that the process leading to the termination was flawed. Consequently, the dismissal was deemed harsh, unjust, and unreasonable. The Commission ordered Bed Bath N' Table to reinstate Chandler to her previous position and provide her with back pay.

Orders