DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Applicant
v
Spotless T/A Spotless
(U2017/6103)

COMMISSIONER PLATT

ADELAIDE, 25 SEPTEMBER 2017

Application for an unfair dismissal remedy – labour hire arrangement – valid reason – not harsh, unjust or unreasonable – application dismissed.

[1] On 8 June 2017, the Applicant lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by her former employer Spotless T/A Spotless (Spotless).

[2] The matter was arbitrated on 6 September 2017. Ms Mary Sullivan of United Voice represented the Applicant and Ms Kirsty Stewart of counsel represented Spotless. Permission was granted pursuant to s.596(2) of the Act.

[3] There was no dispute that the Applicant was protected from unfair dismissal pursuant to s.382 of the Act.

[4] The Applicant was first employed by Spotless on 28 March 2008. At the time of her dismissal the Applicant was employed as a part time Chef and was assigned to the Flinders Medical Centre as a result of a contract between Spotless and the Department of Health and Aging (SA Heath). I have referred to SA Health as the host employer.

[5] On 24 January 2017, the Applicant was involved in an altercation with a SA Health employee. The cause and detail of the altercation is disputed.

[6] The altercation was investigated by Spotless and separately by SA Health.

[7] On 10 March 2017, SA Health directed Spotless that the Applicant not return to its site. Spotless contested that decision. On 29 March 2017, SA Health confirmed its original decision.

[8] On 20 April 2017, Spotless advised the Applicant that unless an alternative assignment could be found she would cease employment on 25 May 2017.

[9] The Applicant was dismissed on 25 May 2017.

[10] The Applicant provided a witness statement, 1 a further witness statement2 and gave evidence on her own behalf.

[11] Spotless provided witness statements and led evidence from:

● Ms Susan Shand – Hotel Service Manager at Flinders Medical Centre for Spotless 3; and

● Mr Jonathan O’Callaghan – Group Manager Hospitals and Aged Care for Spotless. 4

[12] The Applicant contends that the dismissal was harsh, unjust or unreasonable.

[13] The position of Spotless is summarised as follows:

● The decision in Tasmanian Ports Corporation Pty Ltd t/a Tasports v Gee 5 details the factors to which the Commission should consider in determining this matter.
● The host employer exercised its right to remove the Applicant as a result of an incident which occurred on 24 January 2017.
● Spotless investigated that matter, provided the Applicant with the allegations and provided an opportunity to respond, with her position being conveyed to the host employer.
● The host employer confirmed its decision.
● Spotless engaged in a process to provide alternative employment but the Applicant did not seek to pursue any of the opportunities available.
● Spotless had a valid reason to dismiss the Applicant.
● 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.

Continue reading Applicant v Spotless T/A Spotless

Details

AGLC: Applicant v Spotless T/A Spotless [2017] FWC 4963
Case: [2017] FWC 4963
Decision Date: 25 SEPTEMBER 2017

CaseChat Overview and Summary

Applicant brought an application against Spotless T/A Spotless, seeking an unfair dismissal remedy. The dispute arose from the applicant’s dismissal from employment under a labour hire arrangement. Applicant contended that the dismissal was unjust, harsh, or unreasonable. Spotless T/A Spotless argued that the dismissal was for a valid reason and was not harsh, unjust, or unreasonable. The Fair Work Commission was the court that presided over the matter.

The legal issues before the court were whether the applicant's dismissal was valid and whether it was harsh, unjust, or unreasonable. The court considered whether the employer had a valid reason for the dismissal and whether the dismissal was proportionate to the reason. The court also considered the overall fairness of the dismissal, including the manner in which it was carried out.

The court found that Spotless T/A Spotless had a valid reason for the dismissal, as the applicant had engaged in misconduct. The court also found that the dismissal was not harsh, unjust, or unreasonable, as it was proportionate to the misconduct. The court considered the overall fairness of the dismissal, including the manner in which it was carried out, and found that it was conducted in a reasonable and fair manner. The court dismissed the application for an unfair dismissal remedy.

The court ordered that the application for an unfair dismissal remedy be dismissed, with no orders for costs.

Orders