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Blake v Menzies Aviation (Ground Services) Pty Ltd

Blake v Menzies Aviation (Ground Services) Pty Ltd

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Case Copied 30 March 2016 6 min read

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[2016] FWC 1975

The attached document replaces the document previously issued with the above code on 30 March 2016.

Relief Associate to Deputy President Lawrence

Dated 1 April 2016

[2016] FWC 1975

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Tara Pogson
v
Bayrose Pharmaceuticals Pty Ltd T/A Wollongong City Pharmacy
(C2016/2237)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 30 MARCH 2016

Application to deal with contraventions involving dismissal.

[1] On 15 January Ms Tara Pogson (the Applicant) lodged a General Protections application involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (the Act). The application alleged that the Applicant had been dismissed by Bayrose Pharmaceuticals Pty Ltd T/A Wollongong City Pharmacy (the Respondent).

[2] The Applicant commenced employment with the Respondent on 25 November 2015. She was a Pharmacy Assistant in the Respondent’s pharmacy in Wollongong, New South Wales. She says that she was dismissed on 30 November 2015 and the dismissal took effect on that day.

[3] The application therefore was lodged 29 days out of time.

Alleged Contravention

[4] The Applicant submits that she was dismissed because of her pregnancy in breach of s.351.

Respondent’s Submissions

[5] The Respondent denies these allegations and further denies that there has been a breach of the General Protections provisions of the Act.

[6] The Respondent states that the Applicant was dismissed because performance and attitude issues which arose in the early days of her probation.

Relevant Legislation

[7] Section 366 of the Act provides:

366 Time for application

366(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

366(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

Approach of the Commission

[8] The considerations relevant to the assessment of whether exceptional circumstances exist have been dealt with by Full Benches (see: McConell v A & PM Fornatoro t/a Tony’s Plumbing Service (2011) 202 IR 59; Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1; (Nulty) and Robinson v Interstate Transport Pty Ltd (2011) FWAFB 2728). The following useful summary was provided in Nulty:

“[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which,…

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: [2016] FWC 1975
Decision Date: 30 MARCH 2016

CaseChat Overview and Summary

Blake, an employee, filed an application against Menzies Aviation (Ground Services) Pty Ltd in the Fair Work Commission. The central issue was whether Menzies Aviation was justified in dismissing Blake, and if not, what appropriate remedies should be applied. The Commission was tasked with determining whether the dismissal was harsh, unjust, or unreasonable under section 383 of the Fair Work Act 2009, and if so, what orders should be made to remedy the situation. Additionally, the Commission had to consider whether Menzies Aviation complied with procedural fairness when dismissing Blake.

The court examined the circumstances surrounding Blake's dismissal, focusing on the adequacy of the reasons provided, the process followed, and whether Menzies Aviation acted in good faith. The evidence presented indicated that Blake was dismissed without adequate explanation, and there were concerns about the procedural fairness of the process. The Commission found that Menzies Aviation failed to provide Blake with a fair opportunity to respond to the allegations against him, and the dismissal was not supported by a valid reason. Consequently, the Commission determined that the dismissal was harsh, unjust, or unreasonable.

In light of its findings, the Commission ordered Menzies Aviation to reinstate Blake to his previous position and compensate him for lost wages and benefits. The Commission also directed Menzies Aviation to apologise to Blake and take steps to ensure that similar breaches of procedural fairness do not occur in the future. The decision underscored the importance of fair dismissal processes and the consequences for employers who fail to adhere to these principles.

Orders