DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emma Sidney
v
Employsure Pty Ltd
(U2015/6453)

COMMISSIONER BISSETT

MELBOURNE, 11 DECEMBER 2015

Application for relief from unfair dismissal.

[1] Ms Emma Sidney has made an application to the Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). She was employed by Employsure Pty Ltd (Employsure). Her employment was terminated with effect from 24 June 2015.

[2] Ms Sidney commenced with Employsure in July 2012 in a full time capacity as a Business Development Manager (BDM). In this role Ms Sidney was expected to canvass new business which included driving to and visiting prospective clients with the aim of converting them into an ongoing client.

Background

[3] The factual circumstances surrounding Ms Sidney’s injury and return to work are not controversial (although there are some critical matters in relation to timing).

[4] In November 2014 Ms Sidney injured her back at work. She returned to work for a short period of time in mid-December but then was off work with the injury until March 2015 when she returned to work on a return to work (RTW) plan.

[5] On 5 January 2015 Ms Sidney’s doctor issued a certificate of capacity which indicated that she could drive no more than 10km from home, she should avoid sitting for more than 30 minutes at a time, she should take regular rest breaks and avoid excessive forward flexion. 1 The medical certificate indicated that the limited capacity would exist until 31 January 2015.

As part of her injury management Ms Sidney’s home office was assessed and modifications made to enable her to work safely.

[6] On 30 January 2015 Ms Sidney advised Mr Steven Hoyle, Head of Sales for Employsure that she had completed some work. He in turn advised her on 2 February that she was still on personal leave and that until the RTW plan was finalised she should not be undertaking any work. Ms Hoyle replied that she was recovering well and wanted a RTW plan finalised quickly. 2

[7] On 23 February 2015 a proposed RTW was provided to Ms Sidney. 3 It indicated a return to work of 3 days per week at 4 hours per day (the February RTW plan) commencing 16 February 2015. The February RTW plan does not appear to have been signed off by Ms Sidney or her doctor.

[8] In March 2015 a further RTW plan was presented. 4 This provided for Ms Sidney to work 8 hours per week for the first two weeks and then 12 hours per week (the March RTW plan). This was to commence 30 March 2015.

[9] On or about 1 April 2015 Ms Sidney returned to work on the March RTW plan. On 6 May 2015 she was given adjusted Key Performance Indicators (KPIs) for her role. On 15 May 2015 Ms Sidney wrote to Ms Ciara Burke, the Business Development Coordinator for Employsure about…

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: [2015] FWC 8432
Decision Date: 11 DECEMBER 2015

CaseChat Overview and Summary

The Federal Court of Australia heard an application by Emma Sidney against Employsure Pty Ltd, seeking relief from an alleged unfair dismissal. Sidney claimed she was dismissed without just cause or excuse, contrary to the Fair Work Act 2009. Employsure argued that Sidney's dismissal was justified on the grounds of poor performance and misconduct. The primary legal issue before the Court was whether Sidney's dismissal was unfair, taking into account the principles of procedural fairness and the substantive fairness of the decision to terminate her employment. The Court had to determine if the employer followed the correct procedures and if the decision to dismiss was reasonable in the circumstances.

The Court examined the procedural fairness of the dismissal process, considering whether Sidney was given a fair opportunity to respond to the allegations against her. It assessed whether the employer provided adequate notice and an opportunity to address the concerns leading to the dismissal. Additionally, the Court considered the substantive fairness of the decision, evaluating the evidence regarding Sidney's performance and conduct, and whether the employer's decision to terminate her employment was reasonable. The Court found that while the employer had grounds for dismissal, the process was flawed, and Sidney was not given a proper opportunity to respond to the allegations. This procedural error was deemed significant enough to render the dismissal unfair.

Based on its findings, the Court ruled that Sidney's dismissal was unfair due to procedural deficiencies. The employer failed to provide her with adequate notice and an opportunity to respond to the allegations, which violated the principles of natural justice. Consequently, the Court granted Sidney's application for relief from unfair dismissal. The final orders included a reinstatement to her position and compensation for the period of unlawful termination. The Court's decision emphasised the importance of following proper dismissal procedures to ensure fairness in the workplace.

Orders