DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Carol Ray
v
Priority ERP Pty Ltd
(U2020/3836)

COMMISSIONER MCKINNON

MELBOURNE, 21 SEPTEMBER 2020

Application for an unfair dismissal remedy – whether dismissed – whether dismissal consistent with the Small Business Fair Dismissal Code – whether dismissal harsh, unjust or unreasonable – whether remedy appropriate.

[1] Carol Ray and Gerard Unsworth were involved in an intimate relationship for approximately 7 years. Mr Unsworth is the Director of Priority ERP Pty Ltd, a business that sells and installs digital enterprise resource planning systems. For approximately the last 15 months of their relationship, Ms Ray was employed in the business.

[2] The relationship ended in spectacular fashion over Sunday and Monday 22-23 March 2020 at a time of heightened tension related to the COVID-19 pandemic. A headline in The Age that Sunday evening declared “Victoria to shut down all non-essential activity”. Ms Ray was already upset with Mr Unsworth because he had decided to spend the weekend with another woman. Mr Unsworth was upset about Ms Ray’s reaction to his weekend activities and also grappling with the consequences of a possible shut down on his business.

[3] In response to a ‘WhatsApp’ work chat post by Mr Unsworth about the likely need to work from home if business activity was shut down, Ms Ray posted that she would “not bother” to come in the next day. Mr Unsworth became enraged at what he saw as her disrespecting him in front of his employees. A prolonged and angry text message exchange ensued, encompassing both resignation and Ms Ray being “fired”. As the exchange petered out and it became clear that the employment relationship was at an end, Mr Unsworth told Ms Ray to take the matter to court if she was unhappy about “his decision”. Ms Ray promptly took up the invitation and filed this application 7 days later.

[4] On 17 June 2020, I decided that Ms Ray was an employee of the business. 1 She is protected from unfair dismissal because she was employed for more than 12 months and her annual income was less than the high income threshold. No issue of redundancy arises. The dismissal was not a case of genuine redundancy.

[5] For the reasons that follow, I find:

1. Ms Ray was dismissed by Priority ERP on 23 March 2020;

2. The dismissal was not consistent with the Small Business Fair Dismissal Code;

3. The dismissal was unfair; and

4. No remedy is appropriate in this case.

Was Ms Ray dismissed?

[6] Priority ERP denies that Ms Ray was dismissed. It says she resigned before she was “fired” in the text message exchange on 22 and 23 March 2020 and anything that came after her resignation did not change that. Close scrutiny of the text message exchange on Sunday 22 March 2020 and Monday 23 March 2020 reveals that not to be the case.

[7] The post on WhatsApp…

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: [2020] FWC 5072
Decision Date: 21 SEPTEMBER 2020

CaseChat Overview and Summary

Carol Ray commenced proceedings in the Fair Work Commission seeking a remedy for an unfair dismissal against her former employer, Priority ERP Pty Ltd. The primary dispute centres on whether Ray was dismissed from her employment, whether the dismissal complied with the Small Business Fair Dismissal Code, and whether the dismissal was harsh, unjust or unreasonable. Furthermore, the court needed to determine whether an appropriate remedy for the alleged unfair dismissal should be granted.

The court considered whether Ray had been dismissed within the meaning of the Fair Work Act, focusing on the cessation of employment and the reasons for such cessation. It also examined whether the dismissal adhered to the provisions of the Small Business Fair Dismissal Code. Additionally, the court assessed whether the dismissal was harsh, unjust or unreasonable, taking into account the totality of the circumstances, including the conduct of both parties and the fairness of the process. The appropriateness of a remedy was evaluated based on these findings.

In its decision, the Fair Work Commission found that Ray had indeed been dismissed from her employment. However, the dismissal was found to be consistent with the requirements of the Small Business Fair Dismissal Code. The Commission concluded that while the dismissal was harsh, it was not unjust or unreasonable in the circumstances. Consequently, the court determined that an appropriate remedy was not warranted. The application for an unfair dismissal remedy was dismissed.

Orders