Caroline Pedersen v Pro Help Australia Pty Ltd - [2022] FWC 1666

[2022] FWC 1666

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Caroline Pedersen
v

Pro Help Australia Pty Ltd

(U2021/11103)

DEPUTY PRESIDENT LAKE

BRISBANE, 28 JUNE 2022

Application for an unfair dismissal remedy – the Applicant was unfairly dismissed – compensation awarded

On 2 December 2021, Ms Caroline Pedersen (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Pro Help Australia Pty Ltd (Respondent). The Applicant seeks compensation.

As the matter could not be resolved by conciliation, directions were issued for the filing of material. A hearing was listed for 6 May 2022 and on 10 May 2022, at which the Applicant sought to be represented. I was required to consider whether permission ought to be granted under s.596 of the Act. Given the volume of evidence and submissions provided by the parties, number of witnesses and the requirement for cross examination involved in considering whether the Applicant’s dismissal was unfair, I was satisfied that it would be of use to the Commission – and would not unduly prejudice the Respondent – to have the assistance of the Applicant’s legal representative. I was also satisfied that the presence of the Applicant’s representative would enable the matter to be dealt with more efficiently. Accordingly, I allowed Ms Leanne Tacey of Anderson Gray Lawyers to represent the Applicant.

Section 396 of the Act requires that I be satisfied of four matters before considering the merits of the Applicant’s application. Neither party disputed, and I am satisfied, that the Applicant made her application within the 21-day period required by s.394(2) of the Act, that she was a person protected from unfair dismissal (as she earned less than the high-income threshold), that her dismissal was not a case of genuine redundancy and that the Respondent is not a small business to whom the Small Business Dismissal Code applies.

Events leading to Applicant’s dismissal

The uncontested factual background to the matter is as follows:

“Around June 2020 the Applicant commenced permanent full-time employment with the Respondent as the Queensland Development Manager responsible for the management of the Support Co Ordination Program NDIS.

An employee Mr Mark Ffinch was hired following the Applicants recruitment and his statement formed part of the allegations however he was unable to attend as a witness and I have not had regard to this evidence as it was not able to be tested – I will therefore not spend time on this aspect of the matter

The Applicant took approved leave from the 25 -29 October 2021.

On the 1 November 2021 Mr Ventaloro requested a meeting with the Applicant which lasted for approximately 2 hours. Several allegations were raised. On the 3 November 2021 Mr Ffinch resigned.

On 4 November 2021 a meeting took place at which time there were some heated exchanges following which an apology was issued to the Applicant…

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: [2022] FWC 1666
Decision Date: 28 JUNE 2022

CaseChat Overview and Summary

Caroline Pedersen brought an unfair dismissal claim against Pro Help Australia Pty Ltd in the Fair Work Commission. The Applicant claimed that her dismissal was not founded on a valid reason and was procedurally unfair. The Respondent alleged that the dismissal was justified on the basis of misconduct. The Commission found that the dismissal was unfair because it was not for a valid reason and the process was procedurally unfair. The Commission ordered compensation of $21,865.20.

The Commission considered the evidence and submissions of both parties and found that the allegations against the Applicant were not substantiated and therefore did not amount to a valid reason for dismissal. The Commission noted that the Respondent's process for investigating the allegations was flawed and procedurally unfair. The Applicant was not provided with specific details of the allegations and was not given an opportunity to respond to them effectively. The Commission also found that the process was influenced by bias and a predetermined outcome.

The Commission considered the criteria for determining whether a dismissal is harsh, unjust or unreasonable under the Fair Work Act. The Commission found that the dismissal was unfair because there was no valid reason for it, the Applicant was not given an opportunity to respond effectively to the allegations, and the process was procedurally unfair.

The Commission then considered the question of remedy. The Commission found that compensation was the appropriate remedy because reinstatement was not appropriate due to the loss of trust and confidence in the Applicant. The Commission calculated the amount of compensation based on the Sprigg formula and relevant factors such as the length of service, remuneration earned, and any other relevant matters. The Commission awarded the Applicant 12 weeks of compensation at the rate of $1822.10 per week, for a total of $21,865.20.

Orders