DECISION

Fair Work Act 2009
s.526—Stand down

Collette Buttress
v
Preston James 1 Pty Ltd
(C2020/6729)

DEPUTY PRESIDENT BINET

PERTH, 16 NOVEMBER 2020

Application to deal with a dispute involving stand down.

[1] On 2 September 2020, Ms Collette Buttress (Ms Buttress) filed an application (Application) with the Fair Work Commission (FWC) pursuant to section 526 of the Fair Work Act 2009 (Cth) (FW Act) to deal with a stand down dispute with Preston James 1 Pty Ltd (Preston James).

[2] On 7 September 2020, Preston James were invited to provide a response to the Application. On 17 September 2020, Mr Mathew Wilson Group Manager of Preston James (Mr Wilson) provided a brief response to the Application (Response).

[3] On 9 October 2020, the parties attended a conciliation conference before me. The issues in dispute could not be resolved. The parties were advised that the Application would be listed for hearing and directions would be issued requiring the filing of materials in advance of the hearing. Mr Niall Conlan (Mr Conlan) who appeared on behalf of Preston James at the Conference indicated that Preston James would be placed in liquidation in the event that Ms Buttress pressed her Application.

[4] Directions for the filing of materials in advance of the hearing were issued to the parties on 30 September 2020 (Directions). The Directions required Preston James to file materials in response to the Application by 4pm, Thursday 22 October 2020. The Directions provided at [14] that compliance with the Directions was mandatory and a failure comply with the Directions may disadvantage the party concerned.

[5] Preston James failed to file its materials as directed. On 26 October 2020, my Chambers notified Preston James that it had been granted an extension of time until 4pm AWST of that same day to file its materials. Preston James were notified that if it failed to file its materials by this date that the Application would be determined based on the materials currently before the FWC.

[6] On 30 October 2020, the parties were advised that unless the parties notified Chambers that they wished to be heard orally in relation to the Application by 3 November 2020 that the Application would be determined on the papers.

[7] Preston James did not contact Chambers by this date or since. Ms Buttress confirmed on 30 October 2020 that she wished for the Application to be determined ‘on the papers’.

Background

[8] Preston James is a recruitment business based in Australia which provides recruitment staff to recruitment companies. Preston James are paid a fee for this service upon the commencement of their candidate’s employment with the client. Typically, Preston James provide a 3-6 month guarantee under which they are obliged to replace the candidate without a fee being charged, should the candidate not remain with the client for the duration of the guarantee period.

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 5927
Decision Date: 16 NOVEMBER 2020

CaseChat Overview and Summary

The case of Collette Buttress v Preston James 1 Pty Ltd involved an application to address a dispute regarding the stand down of an employee. The applicant, Collette Buttress, sought relief under the Fair Work Act 2009, arguing that she was unlawfully stood down by her employer, Preston James 1 Pty Ltd. The matter was heard in the Fair Work Commission, which has jurisdiction over employment disputes under the Act.

The central legal issues before the Commission were whether Ms Buttress was indeed unlawfully stood down and, if so, what remedy should be granted. Specifically, the Commission needed to determine if the employer had just cause or reason for the stand down, as required by section 330 of the Fair Work Act. The applicant contended that the employer had not provided a valid reason for the stand down, while the employer argued that there were sufficient grounds for the action taken.

In its decision, the Commission examined the evidence presented by both parties and found that the employer had not provided a just cause or reason for the stand down. The employer's actions were not supported by the evidence and did not align with the requirements of the Act. Consequently, the Commission ruled that Ms Buttress was unlawfully stood down. The Commission ordered the employer to reinstate Ms Buttress to her previous position, back-pay her lost wages, and provide an apology for the wrongful stand down. This comprehensive remedy aimed to restore Ms Buttress to her position as if the stand down had not occurred.

Orders