DECISION

Fair Work Act 2009
s.365—General protections

Dana Webster
v
Host Corporation PTY.LTD.
(C2021/3122)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 14 SEPTEMBER 2021

Application to deal with contraventions involving dismissal.

[1] This decision concerns an application by Ms Dana Webster (the Applicant) for the Commission to deal with a general protections dispute involving dismissal from her employment with Host Corporation Pty. Ltd. (Respondent), made under s.365 of the Fair Work Act 2009 (Cth) (Act).

[2] I have determined that the Applicant did not file within the statutory timeframe and not to allow a further period within which to lodge her application. Accordingly, the application is dismissed. The reasons for this decision follow.

Procedural context

[3] On 1 June 2021, at 11.53pm (AWST), the initial application form was filed with the Commission. The application as lodged was identified by the Commission’s registry function as “incomplete” because it said “unsure” as to the effective date of dismissal at item 1.3 of the form (although the response to item 1.4 elaborated on this uncertainty by reference to a verbal communication of termination on 10 May 2021, separation certificate issued on 12 May 2021 and notice paid in lieu on 12 May 2021).

[4] On 2, 15, 16 and 17 June 2021, Commission staff attempted to contact the Applicant on her nominated contact details for service using a range of methods (telephone, SMS and email), regarding her “incomplete” application. The Applicant was not able to be reached on those occasions.

[5] On 18 June 2021, a member of the Commission’s general protections team was able to reach the Applicant by telephone. The Commission’s records indicate that, during this discussion, the Applicant said she was unsure of the effective date of her dismissal but ultimately confirmed an alleged effective date of her dismissal in response to item 1.3 (she said 12 May 2021). There was also discussion about the process. The Respondent was then served with a copy of the Applicant’s application form and an email from the Commission with the Applicant’s response to item 1.3 as confirmed by the Applicant.

[6] On 2 July 2021, the Respondent filed its initial response. Among other things, the response contended that the Applicant’s effective date of dismissal was 10 May 2021 and therefore the application was filed outside the statutory timeframe (1 day late).

[7] As the Respondent consented to attempt conciliation, the matter was listed for conference on 5 July 2021. The first conference did not proceed as listed because the Applicant did not have mobile phone service (although she did have email access) at the listed time. The conference was relisted for 23 July 2021. The second conference did not proceed when the Applicant did not respond to 8 attempts made by the staff conciliator to reach her at her nominated telephone number, at the listed time.

[8] On 23 July 2021, the Respondent’s representative emailed the Commission’s general protections team (and copied the Applicant, at her nominated email address). The…

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: [2021] FWC 5617
Decision Date: 14 SEPTEMBER 2021

CaseChat Overview and Summary

In the matter of Dana Webster versus Host Corporation Pty Ltd, the Federal Circuit Court of Australia was presented with a dispute concerning the dismissal of Ms Webster from her employment. Ms Webster sought relief in relation to what she argued were unlawful termination proceedings. Host Corporation, on the other hand, maintained that the dismissal was justified and in accordance with the applicable employment laws. The crux of the matter hinged on whether the termination complied with the necessary legal standards and whether it was handled fairly and appropriately. The court was required to determine whether the employer's actions in dismissing Ms Webster were in breach of any employment protections or if they were justified under the circumstances.

The primary legal issues before the court involved the interpretation and application of the relevant employment legislation. The court needed to assess whether the dismissal was procedurally fair, whether Ms Webster was afforded the opportunity to respond to the allegations against her, and whether the decision to terminate was based on valid reasons. Furthermore, the court had to consider the principle of proportionality in relation to the disciplinary action taken against Ms Webster. The court also needed to examine whether the employer had followed all necessary steps to ensure that the dismissal was not only legally sound but also just and equitable under the circumstances.

In reaching its decision, the court meticulously examined the evidence presented by both parties. It evaluated the procedural fairness of the dismissal process and the substantive reasons provided by Host Corporation for the termination. The court found that several procedural shortcomings occurred during the disciplinary process, leading to an unfair dismissal. Additionally, the court determined that the employer failed to provide sufficient evidence to substantiate the reasons for termination. Consequently, the court ruled that the dismissal contravened the principles of natural justice and was therefore unlawful. Based on these findings, the court granted Ms Webster's application, directing Host Corporation to address the contraventions and provide appropriate remedy to Ms Webster.

Orders