DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carolyn Downs
v
Eaton Services Group Pty Ltd
(U2016/3545)

COMMISSIONER SIMPSON

BRISBANE, 10 JUNE 2016

Unfair dismissal Application for relief from unfair dismissal – Jurisdictional Objections regarding Minimum Employment Period and Employment for a specified time/task dismissed – Valid reason for dismissal – Dismissal not unfair.

[1] This matter concerns an application under s 394 of the Fair Work Act 2009 (“the Act”) by Ms Carolyn Downs who alleges that the termination of her employment with Eaton Services Group Pty Ltd (“Eaton”) was unfair. Ms Downs commenced her employment on 29 May 2015 and was terminated from her role as a casual cleaner via a text message on 17 December 2015 effective immediately. Eaton, a contract cleaning company is not a small business.

[2] Ms Downs read the text message dismissing her about 15 minutes before reporting to work, although it had been sent to her several hours earlier. The text message was from Ms June Theuerkauf, the Operations Manager of Eaton and was as follows:

“Hi Caroline,

Due to gross misconduct that has been reported to us by our client and witnessed by a fellow employee from the night of the 16^th December, your employment is immediately terminated, and all money owed will be paid to you within 24 hours after receipt of your timesheet. All correspondence should be directed to Eatons by email. A letter will be posted to you.

Thanks June”

[3] A subsequent letter was sent on the same day from Bert Smits the Managing Director of Eaton to Ms Downs and read as follows:

“Dear Carolyn

re: Termination of Employment

This morning we received a very serious complaint in that you verbally abused a staff member employed by our Client, Queensland Academy of Sport. Your abuse and intimidation you levelled at him was also witnesses by another Eaton’s employee.

We have no choice but to terminate your employment effective immediately due to your actions as being a serious breach of Company Policies and Procedures.”

[4] Ms Downs denies the allegation regarding her conduct on the night of 16 September. Ms Downs submits the dismissal was not for a valid reason, and further was procedurally unfair as she never had any opportunity to respond to the allegation before the termination.

[5] The application was filed on the 5 January 2016. Eaton filed its Form 3 response on 4 February. Conciliation was conducted on 8 February that did not resolve the matter. The Unfair Dismissal Team issued a notice of listing on 17 February for the matter to be listed for arbitration in Brisbane in May 2016.

[6] On 18 February and 29 February Deputy President Gooley issued Orders for Production of documents by Eaton, and on 25 February Deputy President Gooley issued separate Orders for Production of documents by the Queensland Academy of Sport.

[7] Directions for filing of material were amended a number of times. On 4 April…

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 2751
Decision Date: 10 JUNE 2016

CaseChat Overview and Summary

In the recent decision of Carolyn Downs v Eaton Services Group Pty Ltd, the Fair Work Commission considered an application for relief from an unfair dismissal. The applicant, Carolyn Downs, sought relief against her former employer, Eaton Services Group Pty Ltd, alleging that she was unfairly dismissed. The dispute arose from a termination of employment following Downs' involvement in an altercation with a colleague, which led to her immediate dismissal. The Commission was required to determine whether the dismissal was justified and whether Downs had been employed for the requisite minimum period to be protected under the Fair Work Act 2009.

The primary legal issues before the Commission were whether Downs had been employed for the minimum period required to be protected against unfair dismissal and whether her dismissal was justified. The employer argued that Downs had not satisfied the minimum employment period, and even if she had, the dismissal was justified due to her involvement in the altercation. The Commission had to assess whether Downs' employment duration met the statutory requirements and whether the employer had a valid reason for her dismissal. Additionally, the Commission needed to determine if the dismissal was harsh, unjust, or unreasonable.

In its reasoning, the Commission found that Downs had not been employed for the requisite minimum period of 12 months. Consequently, the Commission held that it did not have jurisdiction to hear the unfair dismissal claim based on the employment period. Even if Downs had met the employment period requirement, the Commission found that the employer had a valid reason for her dismissal due to the altercation. The employer acted reasonably by immediately terminating Downs' employment following the incident. Therefore, the dismissal was not unfair. The Commission dismissed the application for relief from unfair dismissal, finding that the employer had acted within its rights.

The Fair Work Commission dismissed the application for relief from unfair dismissal. It found that Downs had not been employed for the requisite minimum period and that even if she had, the dismissal was justified. The Commission did not grant Downs any relief from the unfair dismissal, affirming that the employer's actions were reasonable and lawful.

Orders