Danielle Schofield v Edcorp Group P/L - [2022] FWC 2889

[2022] FWC 2889

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Danielle Schofield
v

Edcorp Group P/L

(U2022/7068)

COMMISSIONER BISSETT

MELBOURNE, 31 OCTOBER 2022

Application for an order for costs under s.611 – application not settled at staff conciliation – application discontinued prior to allocation to a Member – costs not ordered

BACKGROUND

On 12 July 2022 Ms Danielle Schofield made an application to the Fair Work Commission (Commission) in which she sought a remedy for unfair dismissal. Ms Schofield said that she had been unfairly dismissed from her employment with EDCORP Group P/L (EDCORP) with effect from 30 June 2022.

In her application Ms Schofield indicated that she received notification from EDCORP that it had “gone through significant hardship over the last 2 yrs” and is “required to make a number of changes to its staffing.” EDCORP thanked Ms Schofield for her input to the “vendor finance program” but advised that her employment was “no longer financially viable”. She was therefore given “three weeks’ notice” with her last day to be 1 July 2022.

Ms Schofield indicated she considered her dismissal to be unfair because:

1.   The reason given in the termination did not accord with her performance
2.   The period of notice was inadequate given the position she held in the company
3.   EDCORP failed to pay wages, termination payments and superannuation contributions
4.   No warnings were given

Ms Schofield indicated that she was seeking the payment of her statutory entitlements and compensation for the dismissal “commensurate with the time it takes to find alternate employment and any other costs associated.”

ECORP filed its response to the application of Ms Schofield on 27 July 2022. In its response EDCORP indicated that it had an objection to the application on the ground that the dismissal was a genuine redundancy as it was “no longer financially viable” to employ her. In its response to the contentions of Ms Schofield EDCORP said that it engaged in commercial negotiations with Ms Schofield which were unsuccessful. As at 1 July 2022 Ms Schofield had not returned EDCORP property and “IP” as a result of which EDCORP withheld her final pay. On 15 July 2022 EDCORP received a letter from Mr Richard Allsop on behalf of Ms Schofield in which payment of final salary, annual leave owing, sick leave and commission owing was sought. That correspondence indicated that if the monies owing were not paid Ms Schofield would pursue her application in the Commission.

A conciliation conference of the parties was held before a staff conciliator on 9 September 2022. Correspondence was sent to the parties following that conciliation which said that “settlement was not reached during conciliation,” indicated that the file would be held by the conciliator until close of business on 16 September 2022 and if the conciliator had not heard from Ms Schofield or her representative that the matter had settled or was withdrawn the application would be forwarded for arbitration.

On 16 September 2022 Ms Schofield emailed 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.

Continue reading Danielle Schofield v Edcorp Group P/L

Details

AGLC: Danielle Schofield v Edcorp Group P/L [2022] FWC 2889
Case: [2022] FWC 2889
Decision Date: 31 OCTOBER 2022

CaseChat Overview and Summary

Danielle Schofield brought an unfair dismissal claim against Edcorp Group P/L before the Fair Work Commission, claiming that she was unfairly dismissed and that the employer failed to pay her final wages and entitlements. Edcorp Group P/L responded to the claim by objecting to it and stating that the dismissal was a genuine redundancy due to financial hardship. After a staff conciliation, Schofield withdrew her application, and Edcorp Group P/L subsequently applied for costs under section 611 of the Fair Work Act 2009.

The key legal issue was whether the Commission should order Schofield to pay the costs incurred by Edcorp Group P/L. The application for costs did not specify whether it was made under subsection 611(2)(a) or (b) of the Act, raising a fundamental issue about the Commission's ability to determine the grounds of the application. The Commissioner found that the application could not be considered vexatious or without reasonable cause based on the material presented. Furthermore, the Commissioner was not satisfied that it should have been reasonably apparent to Schofield that her application had no reasonable prospect of success.

The Commissioner dismissed the application for costs, reasoning that awarding costs in such circumstances might deter applicants from pursuing their claims. Additionally, the Commissioner noted that Edcorp Group P/L had not substantiated or particularised the costs claimed. The lack of particularisation or explanation as to why the amounts were justified further supported the decision not to award costs and dismiss the application.

The Commissioner ordered that Edcorp Group P/L's application for costs be dismissed. This decision emphasised the importance of ensuring a fair go for all parties involved in unfair dismissal claims and conducting the matter in a way that is fair, just, quick, informal, open, and transparent.

Orders