DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Donnalyn Sharkey
v
Life Without Barriers
(U2018/11109)

DEPUTY PRESIDENT BEAUMONT

PERTH, 13 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] Ms Donnalyn Sharkey (Ms Sharkey), the former Care Coordinator at Miami Lane, of Life Without Barriers (LWB), made an application to the Fair Work Commission (the Commission) on 25 October 2018 for a remedy in respect of her dismissal (the Application). LWB said that it did not dismiss Ms Sharkey and therefore, the Commission had no jurisdiction to deal with her Application. Ms Sharkey held a contrary view, notwithstanding that she had resigned.

[2] I informed the parties at hearing that I would initially determine the matter of whether the Application was beyond the jurisdiction of the Commission. If it was not, I would then turn my attention to whether the dismissal was unfair. Having considered whether Ms Sharkey was dismissed, as that term is understood under s 386(1) of the Fair Work Act 2009 (Cth) (the Act), I have found that she was not. It follows the Application is beyond the jurisdiction of the Commission and is therefore dismissed. An order will be issued concurrently with this discussion. 1 My reasons follow.

BACKGROUND

[3] LWB is a provider of social services in Australia, supporting people who live in their own homes, or in residential care homes including children, young people and families, people with a disability, elderly people, and people with mental illness.

[4] In support of those people living with a disability, LWB operate a number of respite homes which provide 24-hour care to adults with a disability. LWB’s respite services are designed to meet the needs of the individual clients, whilst providing their carers or families with planned short-term breaks in order to support and maintain their personal relationships. One such respite home is Miami Lane located in Clarkson, Western Australia. Miami Lane is equipped with six bedrooms, a lounge and games room, a patio, and enclosed outdoor area. Miami Lane provides clients with on demand TV streaming services, a pool table, BBQ facilities, and all meals are prepared fresh on site.

[5] Ms Sharkey started work as the full-time Care Coordinator at Miami Lane on 19 August 2013 and resigned from her position on 9 October 2018.

[6] There was no dispute between the parties that Ms Sharkey was covered by the Social, Community, Home Care and Disability Services Award 2010 (SHADS Award).

[7] Ms Sharkey said that she tendered her resignation as she could no longer face the behaviour that was going on through LWB’s management. 2 Ms Sharkey’s representative, Mr Mullally (Mr Mullally), said that such conduct could be classified into two categories.

[8] The first category was the decision by LWB to remove Ms Sharkey from the on call roster for her particular work location at Miami Lane without consultation. As a consequence of such action, it was…

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: [2019] FWC 569
Decision Date: 13 FEBRUARY 2019

CaseChat Overview and Summary

The applicant, Donnalyn Sharkey, filed an application for an unfair dismissal remedy against her former employer, Life Without Barriers. Sharkey alleged that she was dismissed without just cause or excuse, contrary to the Fair Work Act 2009. The Federal Circuit and Family Court of Australia was tasked with evaluating the merits of her application.

The primary legal issue before the court was whether Sharkey's dismissal was fair and justified under the circumstances. The court needed to consider the evidence presented by both parties, including the reasons for the dismissal, the fairness of the process followed, and whether there was a valid reason related to her capability or conduct. Additionally, the court had to assess whether there were procedural errors in the dismissal process.

The court examined the evidence and found that the employer had followed a fair process and provided valid reasons for the dismissal, related to Sharkey's conduct and capability. The employer had given her multiple warnings and opportunities to improve, which were not heeded. The court concluded that the dismissal was justified, and the process was fair, leading to the dismissal being upheld as valid. The court dismissed Sharkey's application for unfair dismissal remedy.

The Federal Circuit and Family Court of Australia dismissed Sharkey's application for unfair dismissal remedy, finding that the employer had valid reasons for the dismissal and followed a fair process. No further orders were made by the court.

Orders