DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ashley Dominick
v
Jessicare Pty Ltd
(U2021/7519)

DEPUTY PRESIDENT MASSON

MELBOURNE, 26 NOVEMBER 2021

Application for an unfair dismissal remedy – valid reason found – dismissal found not to be unfair – application dismissed – question of remedy considered in the alternative.

[1] On 24 August 2021, Miss Ashley Dominick (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Jessicare Pty Ltd (the Respondent) on 20 August 2021. The Applicant seeks an order for compensation.

[2] Conciliation of the matter before the Commission failed to achieve a resolution and consequently the matter was listed for hearing/conference before me on 18 November 2021. After hearing from the parties, I determined to conduct a conference pursuant to s.398 of the Act.

[3] Both parties were granted permission to be legally represented pursuant to s.596(2) of the Act. At the Conference the Applicant was represented by Ms Natalie Vogel of counsel. The Applicant was called to give evidence along with her mother Ms Lori Dominick (Ms Dominick). The Respondent was represented by Mr Tinashe Makamure, Senior Associate of Barry Nilsson Lawyers who called Ms Jessica Hull, Director of the Respondent to give evidence.

Background and evidence

[4] The Respondent provides personal care services to people with disabilities throughout the Metro-Melbourne area and at the time of the Applicant’s dismissal, employed approximately 21 staff. Ms Hull is the Respondent’s sole director and was in a personal relationship with the Applicant for approximately 9 years up until December 2020 1.

[5] The Applicant commenced employment with the Respondent on 20 August 2020 as a casual Support Worker on a minimum rate of $50.00 per hour for which she entered into a signed employment agreement dated 4 August 2020 2. Despite the personal relationship between the Applicant and Ms Hull ending in December 2020, the Applicant continued to work for the Respondent and accepted a permanent part-time position on or around 17 February 2021. While the applicant and Ms Hull had initially agreed on a salary of $52,000 (inclusive of superannuation) in December 2020, Ms Hull subsequently agreed in February 2021 to temporarily increase the proposed salary of $52,000 to $80,000 for a period of 6 weeks. No formal employment agreement reflecting the terms of the permanent part-time position or the temporary salary increase to $80,000 was signed by the Applicant or Ms Hull.

[6] Ms Dominick who is the Applicant’s mother, originally assisted Ms Hull to set up the financial systems of the Respondent’s business including the payroll and accounting operating system in mid 2020 when the business was established³. Ms Dominick, who continued to support the Respondent’s business after its establishment, was not an employee of the Respondent. Ms Hull states that at the time of the Applicant’s appointment 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 6421
Decision Date: 26 NOVEMBER 2021

CaseChat Overview and Summary

The applicant, Ashley Dominick, sought a remedy for unfair dismissal from the Federal Circuit Court of Australia against the respondent, Jessicare Pty Ltd. The applicant, who had been employed by the respondent, claimed that her dismissal was unfair and sought reinstatement or compensation. The respondent argued that the dismissal was justified due to misconduct and that any remedy sought by the applicant should be denied.

The court was required to determine whether the dismissal was valid and, if so, whether it was unfair. The key issue was whether the respondent had established a valid reason for the dismissal, and if that reason was sufficient to render the dismissal fair. Additionally, the court had to consider whether the dismissal process was procedurally fair and if any remedy sought by the applicant was appropriate.

The court found that the respondent had established a valid reason for the dismissal, as the applicant's actions warranted termination of employment. The respondent demonstrated that the applicant had engaged in misconduct that breached the employment contract. The court further found that the dismissal was procedurally fair, as the respondent followed the appropriate procedures outlined in the Fair Work Act 2009. Given that a valid reason for dismissal was found, the court concluded that the dismissal was not unfair. However, the court considered the remedy in the alternative and found that no remedy was appropriate in this instance.

The court dismissed the applicant's claim for an unfair dismissal remedy, as the respondent had established a valid reason for the dismissal and the process was procedurally fair. No remedy was awarded to the applicant.

Orders