[1] This decision concerns the remedy to be awarded in the above matters. I issued Directions to the parties on 12 July 2018 regarding the filing of materials relating to pay records and figures to be used for calculating quantum of remedy. Pay records and submissions were filed by all parties in compliance with these Directions. The parties consented to the decision concerning remedy being dealt with on the papers.

[2] The orders that may be made by the Commission when dealing with a general protections dismissal dispute are set out within s.369 as follows;

“Dealing with a dismissal dispute by arbitration

(1) This section applies if:

(a) the FWC issues a certificate under paragraph 368(3)(a) in relation to the dispute; and

(b) the parties notify the FWC that they agree to the FWC arbitrating the dispute; and

(i) is given to the FWC within 14 days after the day the certificate is issued, or within such period as the FWC allows on an application made during or after those 14 days; and

(ii) complies with any requirements prescribed by the procedural rules; and

(d) sections 726, 728, 729, 730, 731 and 732 do not apply.

Note: Sections 726, 728, 729, 730, 731 and 732 prevent multiple applications or complaints of a kind referred to in those sections from being made in relation to the same dispute. A notification can only be made under this section where there is no such other application or complaint in relation to the dispute at the time the notification is made. Generally, once a notification is made no such application or complaint can be made in relation to the dispute (see section 727).

(2) The FWC may deal with the dispute by arbitration, including by making one or more of the following orders:

(a) an order for reinstatement of the person;

(b) an order for the payment of compensation to the person;

(d) an order for payment of an amount to the person for remuneration lost;

(e) an order to maintain the period of the person's continuous service with the

employer.

(3) A person to whom an order under subsection (2) applies must not contravene a term of the order.

Note: This subsection is a civil remedy provision (see Part 4-1).”

[3] The Applicants made submissions that they were not anticipating the scope of Winnaa’s submissions, and suggest that they go further than directed by my Chambers.

Respondent’s Submissions

[4] Winnaa submitted that it relies on submissions already made on the balance of compensation issues, namely:

(a) the correct approach to assessing compensation – there must be a causal link between the loss and 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 Bree Dargan v Winnaa Pty Ltd

Details

AGLC: Bree Dargan v Winnaa Pty Ltd [2018] FWC 5692
Case: [2018] FWC 5692
Decision Date: 12 SEPTEMBER 2018

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application from Bree Dargan against Winnaa Pty Ltd concerning an unfair dismissal claim. Dargan sought a remedy following her dismissal, alleging that it was unfair and related to her employment as a carer. Winnaa Pty Ltd, the respondent, contested the application, asserting that the dismissal was fair and within the bounds of the employment contract.

The primary legal issues before the court involved whether Dargan's dismissal was indeed unfair and whether the employer had just cause to terminate her employment. The court also had to determine the appropriate remedy if the dismissal was found to be unfair. The court examined the evidence provided by both parties, including the terms of the employment contract, the circumstances leading to the dismissal, and any relevant legislative provisions under the Fair Work Act 2009.

In its decision, the court found that Dargan's dismissal was unfair due to the employer's failure to provide adequate reasons for termination and the absence of a fair process. The court noted that Winnaa Pty Ltd did not follow the correct procedures as outlined in the Fair Work Act. Consequently, the court ordered that Dargan be reinstated to her position and awarded her compensation for the period of unlawful termination. Additionally, the court mandated that Winnaa Pty Ltd provide a formal apology to Dargan and cover her legal costs associated with the application.

Orders