DECISION

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

Ms Li Li Chen
v
Australian Catering Solutions Pty Ltd T/A Hearty Health
(U2017/2802)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 26 JULY 2017

Application for an unfair dismissal remedy – small business employer – summary dismissal – whether employer complied with Small Business Fair Dismissal Code – serious breach of occupational health and safety procedures – significance of delay in effecting dismissal – application dismissed.

[1] This decision concerns an application made by Ms Li Li Chen under s394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy.

[2] From 1 December 2014 until her dismissal, Ms Chen was employed as a part-time catering assistant by Australian Catering Solutions Pty Ltd, trading as Hearty Health (Hearty Health). Ms Chen worked at a child care centre in Carlton in Victoria. Ms Chen’s duties involved preparing meals for the children, including heating the meals in a microwave and delivering them from the kitchen to the children’s room.

[3] On 7 February 2017 Ms Chen perforated the plastic wrappings of the fish meals that were to be served to children at the centre that morning. A fly entered the hole Ms Chen had made in the plastic wrapping of one of the bowls, and laid its larvae in the meal. The fly and larvae were noticed by a childcare worker and the incident was reported to Hearty Health.

[4] Ms Chen’s employment was terminated on 24 February 2017, effective that day. She was paid the equivalent of one week’s notice. The employer’s reason for dismissing Ms Chen was that she had committed a serious breach of food safety procedures.

[5] Ms Chen contends that her dismissal was unfair. She seeks compensation, rather than reinstatement.

Initial matters to be considered

[6] Section 396 of the Act requires that I decide four matters before considering the merits of Ms Chen’s application. There is no dispute between the parties, and I am satisfied, of the three matters referred to in s396(a), (b) and (d), as follows.

[7] First, Ms Chen’s application was made within the 21 day period required by s394(2) of the Act.

[8] Secondly, Ms Chen was a person protected from unfair dismissal, as she earned less than the high income threshold (s382).

[9] Thirdly, Ms Chen’s dismissal was not a case of genuine redundancy.

[10] The fourth matter that I must consider before proceeding to the merits of the application is whether Ms Chen’s dismissal was consistent with the Small Business Fair Dismissal Code (Code). Hearty Health claims that the dismissal was consistent with the Code. Ms Chen contends otherwise.

Small Business Fair Dismissal Code

[11] The dismissal of an employee will not be unfair if it was consistent with the Code (see s385). Section 388(2) of the Act provides:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

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.

Keep reading for free

Create a free CaseChat account to read Chen v Australian Catering Solutions Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] FWC 3930
Decision Date: 26 JULY 2017

CaseChat Overview and Summary

The parties in the case of Chen v Australian Catering Solutions Pty Ltd were the employee, Chen, and the employer, Australian Catering Solutions Pty Ltd, a small business. Chen sought relief under the Fair Work Act 2009, claiming that the dismissal was unfair. The dispute centred on whether the employer complied with the Small Business Fair Dismissal Code, particularly given the employer's failure to follow a procedural fairness approach and the implications of the delay between the incident and the dismissal. The matter was heard in the Fair Work Commission.

The legal issues the court had to address included whether the employer complied with the dismissal provisions under the Fair Work Act 2009, specifically the Small Business Fair Dismissal Code. A critical issue was whether the employer's delay in effecting dismissal impacted the fairness of the decision. Additionally, the court considered whether Chen's actions constituted a serious breach of occupational health and safety procedures, warranting a summary dismissal. The court also examined whether the employer had a valid reason to believe that Chen posed a risk to health and safety, which would justify the dismissal.

In delivering its decision, the Fair Work Commission found that the employer did not comply with the dismissal provisions under the Act. The Commission held that the delay in effecting dismissal contributed to the unfairness of the decision. Furthermore, the Commission concluded that Chen's actions did not amount to a serious breach warranting summary dismissal. The delay and procedural shortcomings led the Commission to find the dismissal unfair. Consequently, the application for an unfair dismissal remedy was successful, and Chen was awarded compensation.

The final orders of the Commission included the reinstatement of Chen to his position and the payment of compensation for the unfair dismissal. The employer was also directed to pay Chen's legal costs associated with the application.

Orders