Daniela Marinakis (Stojcevska) v Wabtec Control Systems Pty Ltd - [2022] FWC 1624

[2022] FWC 1624

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniela Marinakis (Stojcevska)
v

Wabtec Control Systems Pty Ltd

(U2022/3306)

DEPUTY PRESIDENT BELL

MELBOURNE, 19 AUGUST 2022

Application for an unfair dismissal remedy.

Introduction and Background

This decision concerns an application for an unfair dismissal remedy made by Ms Daniela Marinakis (Stojcevska) (the Applicant) under s.394 of the Fair Work Act 2009 (Cth) (FW Act). The Applicant was, until 7 March 2022, employed by Wabtec Control Systems Pty Ltd (Respondent). On that date, the Respondent gave written notice terminating the Applicant’s employment.

The Applicant’s employment was not terminated because of poor conduct or performance. The evidence discloses she was a valued employee, who had worked with the Respondent since 2011 on a full-time basis. Rather, the Respondent stated that the Applicant was unable to perform the inherent requirements of her role, as she was unable to attend the workplace as a consequence of Victorian public health orders that applied to the Respondent, which prohibited it from permitting the Applicant to work outside her place of residence without proof of vaccination against COVID-19. The Applicant contends she was unfairly dismissed in contravention of the FW Act.

The Applicant represented herself at the hearing. The Respondent was represented by Counsel, with permission to be represented having previously been granted. There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing. After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).

At the commencement of the hearing, the Applicant made a request for an adjournment of the hearing. The application related to the late withdrawal by the Respondent of one of the witnesses it was intending to call, due to unforeseen circumstances. That witness was Ms Wendy McMillan, who was the Senior Regional Vice President, South East Asia, Australia and New Zealand for ‘Wabtec Australia’. Appropriately, the Respondent did not otherwise seek to rely upon that statement. I note that Ms McMillan’s statement was relatively confined in scope – she in part gave evidence of her discussions with another witness (who was otherwise being called) and that it was her decision to dismiss the Applicant. While Ms McMillan signed the letter of dismissal, that letter was not in dispute and it was part of the Applicant’s evidence. The Applicant indicated she wished to cross-examine Ms McMillan about COVID-19 vaccines not being safe or effective. As I consider that the Applicant did not identify any particular prejudice that would arise from her late withdrawal, I refused the application for the adjournment.

Section 390 of the FW Act provides that the Commission may order a remedy if satisfied that the Applicant was “protected from unfair dismissal” at the time of…

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 1624
Decision Date: 19 AUGUST 2022

CaseChat Overview and Summary

In the Fair Work Commission, Daniela Marinakis (Stojcevska) brought an application against Wabtec Control Systems Pty Ltd for unfair dismissal. The Commission was required to decide whether the dismissal was harsh, unjust or unreasonable. In particular, the Commission was required to consider whether there was a valid reason for the dismissal, whether the Applicant was notified of that reason, whether the Applicant was given an opportunity to respond to that reason, and whether the Respondent unreasonably refused the Applicant to have a support person present to assist at any discussions relating to the dismissal. The Court found there was a valid reason for the dismissal related to the Applicant's capacity or conduct. The Court found the Applicant was notified of the valid reason. The Court found the Applicant was given an opportunity to respond to the valid reason. The Court found the Respondent did not unreasonably refuse the Applicant to have a support person present to assist at any discussions relating to the dismissal. The Court concluded the dismissal was not harsh, unjust or unreasonable and dismissed the application.

Orders