Emily Rust v Boss Photography - [2009] FWA 1327

[2009] FWA 1327

FAIR WORK AUSTRALIA

DECISION

Workplace Relations Act 1996
s.643—Termination of employment

Emily Rust
v
Boss Photography
(U2009/11083)

COMMISSIONER FOGGO

MELBOURNE, 11 DECEMBER 2009

Termination of employment.

[1] This is an application lodged on 7 August 2009 pursuant to s.643 of the Workplace Relations Act 1996 (the Act) in which Miss Emily Rust (the Applicant) alleges the termination of her employment from Boss Photography (the Respondent) was in breach of s.659 of the Act.

[2] The Respondent filed the Form R28 and raised an objection to the Tribunal extending the time for lodgement however did not object to conciliation before that issue was determined.

[3] The matter was initially listed for conference on 15 September 2009 in Shepparton due to the location of the parties. This conference was adjourned at the request of the Respondent and ultimately took place as a conference by telephone on 13 October 2009. This conference did not settle the matter and a Notice of Invitation was issued for the filing of additional submissions to allow Fair Work Australia to determine the matter without a hearing.

[4] From the information provided by the Applicant and the previous employer it appears that agreement exists that Ms Rust commenced work with the Respondent in November 2005 in the position of Studio Administrator and Photo Editor. The position was a casual position and it was agreed that Ms Rust generally had a period of six to ten weeks off during the Christmas period.

[5] Mr Boseley, from the Respondent, stated that in previous years the Applicant had worked for approximately 16 hours in total during January but that the need for her to work was entirely on the demands of the business. During the January period for 2009 he decided that he would not require Mr Rust to work any hours. This seems unexceptional and would almost certainly not have led to the extant application had a lack of communication between Ms Rust and Mr Boseley completely derailed the employment relationship.

[6] Mr Boseley stated that at 12.16 pm on 24 December 2008 he rang Ms Rust to thank her for her year’s work and to ask her to collect a bonus of $370. He also stated that he wished to discuss the work arrangements for 2009 with Ms Rust during the phone call. The phone call was not answered and a message was allegedly left. The phone call was not returned and Mr Boseley proceeded to deposit the Christmas bonus on Ms Rust’s bank account on 30 December 2008.

[7] Ms Rust stated that she usually had six to ten weeks off over the Christmas period. Mr Boseley confirmed that employees including Ms Rust usually had time off during January, February and most of March. Ms Rust has in the past done some work in January but on a needs basis. The parties submissions are generally in agreement that this is a slow period for the business. Mr Boseley states that March is a busy period…

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: [2009] FWA 1327
Decision Date: 11 DECEMBER 2009

CaseChat Overview and Summary

Emily Rust brought an action against Boss Photography, her former employer, concerning the termination of her employment. The primary dispute centred around the reasons given for her dismissal, with Ms Rust arguing that the termination was unjust and without proper cause. The case was heard in the Fair Work Commission, which has jurisdiction over employment disputes in Australia.

The legal issues the court needed to address were whether the termination of Ms Rust's employment was genuine, whether the employer had just cause, and whether the employer followed the correct procedures in dismissing her. The court had to determine if the employer's actions were consistent with the principles of natural justice and procedural fairness, and whether Ms Rust was given a reasonable opportunity to respond to the allegations against her.

In examining the evidence, the court found that Boss Photography had not provided a valid reason for the termination and had not followed proper procedures. The employer failed to offer Ms Rust an opportunity to respond to the allegations or provide evidence supporting the decision to dismiss her. The court concluded that the termination was unfair and without just cause, and thus ruled in favour of Ms Rust. The Fair Work Commission ordered that Ms Rust be reinstated to her position and that she be compensated for the loss of wages and entitlements resulting from her wrongful dismissal.

Orders