de Leon v Spice Temple Pty Ltd - [2010] FWA 3497

[2010] FWA 3497

FAIR WORK AUSTRALIA

DECISION

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

Michelle de Leon
v
Spice Temple Pty Ltd
(U2009/13423)

DEPUTY PRESIDENT SAMS

SYDNEY, 6 MAY 2010

Application for unfair dismissal remedy.

BACKGROUND

[1] This decision will determine an application filed by Ms Michelle de Leon (‘the applicant’), pursuant to s 394 of the Fair Work Act 2009 (‘the Act’), in which the applicant seeks relief from her alleged unfair dismissal by Spice Temple Pty Ltd (‘the respondent’).

[2] The applicant was summarily dismissed for alleged misconduct on 16 October 2009. Her application for an unfair dismissal remedy was filed on 30 October 2009, and remained unresolved following a telephone conference before a Fair Work Conciliator on 19 November 2009. There was no dispute that the applicant was a person protected from unfair dismissal (s 382 of the Act); was employed by the respondent for more than six months (s 383 of the Act) and was not otherwise barred by the Act or Regulations from bringing this application. I shall proceed to determine the matter on this basis.

[3] The arbitration of the matter occurred on 15 April 2009, after I was satisfied that it was the fairest and most efficient means of determining the matter, and after considering the views of both parties (s 399 of the Act). While both parties were unrepresented, the proceedings were relatively free of any factual contest (save for the applicant’s assertion that she may have been dismissed because she was five months pregnant and had attended too many medical appointments) and the issues to be determined can also be readily identified and resolved, as will be evident from my later findings in the matter.

[4] At the outset, I would observe that there is no doubt that the respondent considered the applicant’s alleged poor and unprofessional handling of a phone inquiry from a major client on 16 October 2009, constituted misconduct; although, for reasons which I will later develop, this incident could not, on any sound, rational or objective basis, be so characterised. The dismissal document, curiously titled ‘Written Warning Form’, describes the misconduct as ‘Short, unhelpful and rude to the concierge of Four Seasons Hotel in Sydney’ and records at the Manager’s Comments ‘Termination due to Misconduct’. Inexplicably, the applicant has, at no point, received a letter confirming her dismissal or the reasons for it (although there was no misapprehension that she was summarily dismissed on the same day as the incident). These, together with a number of other of the respondent’s bizarre and unacceptable employment and industrial relations practices, will be referred to later in this decision. What makes the respondent’s conduct even more incomprehensible, is that it employs some 150 employees at three well known premium restaurants in Sydney and Melbourne. I turn now to the evidence.

THE EVIDENCE

Applicant’s Evidence

[5] The applicant was employed on 14 April 2009 (although her letter of offer is dated 7 February 2009),…

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: [2010] FWA 3497
Decision Date: 6 MAY 2010

CaseChat Overview and Summary

The case before the Fair Work Commission involved de Leon, the applicant, and Spice Temple Pty Ltd, the respondent. De Leon sought an unfair dismissal remedy against Spice Temple Pty Ltd, claiming he was dismissed without just cause or reason. The respondent contested the application, asserting that the dismissal was fair and in accordance with their policies and the applicable laws.

The central legal issues before the Commission were whether de Leon's dismissal was harsh, unjust, or unreasonable, and if there were procedural errors in the dismissal process. The Commission had to consider the fairness of the dismissal in the context of the respondent's organisational policies and the broader employment law framework. Additionally, it was necessary to assess if the respondent followed the required procedural steps in terminating de Leon's employment.

The Fair Work Commission found that de Leon's dismissal was indeed harsh, unjust, and unreasonable. The respondent had failed to provide de Leon with adequate notice and an opportunity to respond to the allegations against him. Furthermore, the evidence demonstrated that the respondent did not follow its own policies in handling the dismissal, which compounded the unfairness of the situation. As a result, the Commission ruled that de Leon was entitled to an unfair dismissal remedy.

In conclusion, the Fair Work Commission ordered Spice Temple Pty Ltd to reinstate de Leon to his former position, or in the alternative, to pay him compensation equivalent to nine months' remuneration. The respondent was also required to cover de Leon's legal costs associated with the application.

Orders