Ashleigh Curnow v Goodstart Early Learning - [2022] FWC 1234

[2022] FWC 1234

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Ashleigh Curnow
v

Goodstart Early Learning

(U2022/180)

COMMISSIONER MIRABELLA

MELBOURNE, 23 MAY 2022

Application for an unfair dismissal remedy.

This decision concerns an application for an unfair dismissal remedy made by Ms Ashleigh Curnow under s.394 of the Fair Work Act 2009 (the Act). From 21 September 2020 until 17 December 2021, Ms Curnow worked on a full-time basis as an Assistant Director at Goodstart Early Learning (Goodstart). Ms Curnow was dismissed for both being unable to meet the inherent requirements of her job and for refusing to follow lawful and reasonable directions.

Ms Curnow had refused to provide Goodstart with proof that she had been vaccinated against COVID-19 or, alternatively, proof of any medical exemption. Pursuant to the Covid-19 Mandatory Vaccination Directions (No 5), Goodstart was prohibited from allowing workers to attend for work from 18 October 2021 unless they had provided Goodstart with evidence by 18 October 2021 that they had been vaccinated against COVID-19 or had made an appointment to receive a vaccination by 25 October 2021. Ms Curnow contends that her dismissal was unfair and seeks compensation.

Initial matters to be considered – s.396 of the Act

Section 396 requires that I decide four matters before considering the merits of Ms Curnow’s application. I am satisfied of the following. First, the application was made within the 21-day period required by s.394(2). Secondly, there is no dispute that Ms Curnow was a person protected from unfair dismissal. Thirdly, the dismissal was not a genuine redundancy. Fourthly, Goodstart is not a small business employer, and the Small Business Fair Dismissal Code is, therefore, inapplicable.

Was the dismissal unfair? – s.385 of the Act

A dismissal is unfair if I am satisfied on the evidence before me that all of the circumstances set out in s.385 of the Act existed. Section 385 of the Act provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

There is no reason to dispute that Ms Curnow was dismissed (s.385(a)) and, as outlined above, that this case was not a case of genuine redundancy (s.385(d)), or a matter that involves a small business such that consideration needs to be given to the question of whether Ms Curnow’s dismissal was consistent with the Small Business Fair Dismissal Code (s.385(c)).

The remaining factor of which I need to be satisfied is whether the dismissal was harsh, unjust or unreasonable (s.385(b)). In doing so, I must give consideration to s.387 of the Act:

“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)…

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 Ashleigh Curnow v Goodstart Early Learning

Details

AGLC: Ashleigh Curnow v Goodstart Early Learning [2022] FWC 1234
Case: [2022] FWC 1234
Decision Date: 23 MAY 2022

CaseChat Overview and Summary

In the Fair Work Commission, Ashleigh Curnow brought an application for an unfair dismissal remedy against Goodstart Early Learning. Ms Curnow was dismissed from her role as an Assistant Director because she was unable to meet the inherent requirements of her job, namely, the requirement that she be vaccinated against COVID-19. Ms Curnow refused to provide evidence of her vaccination status or a medical exemption. This refusal was also a failure to follow a lawful and reasonable direction. Ms Curnow sought compensation for her dismissal. The Commissioner found that Ms Curnow's dismissal was not unfair. The dismissal was not harsh, unjust, or unreasonable. Goodstart had a valid reason for dismissing Ms Curnow relating to her capacity to do her job. Goodstart was required by law to enforce the COVID-19 vaccination mandate for its employees. Ms Curnow was notified of the reason for her dismissal and given ample opportunity to respond. Ms Curnow's dismissal was not unfair. The application was dismissed.

Orders