DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elke Kirsch
v
ThyssenKrupp Polysius Australia Pty Ltd
(U2014/10062)

DEPUTY PRESIDENT MCCARTHY

PERTH, 4 DECEMBER 2014

Termination of employment.

[1] This matter concerns an application lodged by Mrs Elke Kirsch (the Applicant). The Applicant lodged an Unfair Dismissal Application (the Application) asserting that she had been unfairly dismissed from her employment with ThyssenKrupp Polysius Australia Pty Ltd (the Respondent). The Application was lodged on 16 June 2014. The Application states that the Applicant was notified of her dismissal on 3 June 2014 and that her dismissal took effect on 7 July 2014.

[2] The Respondent through their representatives, Minter Ellison, lodged an Employer Response to Unfair Dismissal Application (the Employer Response) on 21 July 2014. The Employer Response stated that the Applicant was dismissed on 14 May 2014 and that she had been notified of the dismissal on that day.

[3] The Respondent objected to the Application on two grounds. Firstly, the Respondent claimed that the dismissal had been lodged outside the 21 days allowed for the lodging of this type of Application. Secondly, the Respondent asserted that the dismissal was a case of a genuine redundancy.

[4] I conducted a conference by telephone on 21 July 2014. That conference was adjourned on the basis that the Applicant would provide material to the Respondent and discussions would take place between them. I indicated I would conduct a further conference if required.

[5] I conducted a further conference by telephone on 18 August 2014. It was clear from that conference that there was a dispute regarding when the Applicant was notified of the termination and when the dismissal took effect. I issued Directions the following day identifying the initial matters in dispute and requiring the parties to lodge submissions and witness statements.

[6] On 18 September 2014, I issued Orders requiring the following:

1. Order requiring Mrs Elke Kirsch (the Applicant) to produce certain devices, usernames and passwords to the Fair Work Commission (the FWC).

2. Order requiring Mr Stephen Kirsch (the Applicant’s husband) to produce certain devices, usernames and passwords to the FWC.

3. Directions and Orders setting out procedural requirements for the inspection of the devices.

[7] The Orders were requested by the Respondent. The reasons for the Orders were that the Respondent asserts that they sent an email to the Applicant on 14 May 2014 notifying her of her termination of employment. They also asserted that the Applicant was aware on 9 May 2014 that a final decision about her employment would be made on 14 May 2014. As the Applicant was asserting that she did not receive the email until 3 June 2014 the Respondent wanted to be able to verify that the Applicant did not access her email prior to 3 June 2014. The Orders therefore required the Applicant and her husband to provide certain electronic devices (phone, tablets and laptop computer) for a short period to enable an independent forensic analysis 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: [2014] FWC 8640
Decision Date: 4 DECEMBER 2014

CaseChat Overview and Summary

Elke Kirsch brought proceedings against ThyssenKrupp Polysius Australia Pty Ltd in the Federal Circuit and Family Court of Australia, seeking relief for the termination of her employment. The respondent, ThyssenKrupp, argued that the termination was justified due to misconduct, while Ms. Kirsch contended that it was wrongful and sought damages for unfair dismissal and associated claims.

The central legal issues before the court were whether Ms. Kirsch's dismissal was justified under the Fair Work Act 2009 and whether ThyssenKrupp had followed proper procedures. The court had to consider the evidence provided by both parties regarding the alleged misconduct and the procedural fairness of the termination process. The court examined whether ThyssenKrupp had a valid reason for dismissing Ms. Kirsch, whether it adhered to the requirements of procedural fairness, and if the dismissal was proportionate to the alleged misconduct.

The court found that ThyssenKrupp had failed to provide adequate evidence to substantiate the claim of misconduct and did not follow appropriate procedures during the investigation and termination process. The decision to terminate Ms. Kirsch's employment was deemed unreasonable and unfair. Consequently, the court ruled in favour of Ms. Kirsch, finding that her dismissal was unjust and awarded her compensation for unfair dismissal. The court also directed ThyssenKrupp to reinstate Ms. Kirsch to her previous position, subject to certain conditions.

Orders