DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emma Valenzuela
v
Spectrum Community Focus Limited t/as Spectrum Community Focus
(U2017/1378)

SENIOR DEPUTY PRESIDENT HAMBERGER

SYDNEY, 4 OCTOBER 2017

Application for an unfair dismissal remedy; valid reason for dismissal but not serious misconduct; no order for compensation.

[1] Ms Emma Valenzuela (the applicant) applied under s.394 of the Fair Work Act 2009 (FW Act) on 9 February 2017 for an unfair dismissal remedy in relation to the termination of her employment as Finance Manager by Spectrum Community Focus Limited (the respondent) on 14 December 2016.

[2] The respondent initially objected to the application on the grounds that it had been made outside the 21 day time limit provided for in the FW Act. However, following a hearing on 5 June 2017, the objection was withdrawn.

[3] The application was eventually referred to me and hearings were conducted on 4 and 25 September 2017.

[4] The applicant was represented by C Owens and the respondent by J Welch.

The reasons for termination

[5] No formal notice was provided to the applicant giving the reasons for her dismissal. However, she was provided with a letter on 30 November 2016, signed by the respondent’s Managing Director, Larissa Robertson, setting out a series of allegations. That letter includes the following:

‘It has come to my attention that your recent performance has been well below what is expected of you in your position. This is subsequent to numerous verbal and written warnings and requests concerning your performance. If the allegations described below are made out against you:

1. They would constitute serious contraventions of your employment obligations, and the business’ Serious and Wilful Misconduct Policy, (“the SWMP”, including:

a. Performing your duties with skill, care and diligence; and

b. Failing to follow and abide by lawful directions.

2. They would constitute a lack of knowledge or expertise, and/or a clear failure to exercise reasonable care;

3. They would have caused, (and will likely continue to cause,) significant harm to the business;

4. They would have undermined the essential requirement of mutual trust and confidence that must exist between an employer and an employee.

I direct you to consider the below allegations of serious issues and prepare a response.

We will meet tomorrow morning at 9:00 AM in my office to consider your response prior to making a final decision concerning what disciplinary action (if any) may be taken. Please note that we consider the above issues to be very serious, and the outcome of the meeting, or any subsequent investigation, may be suspension, and/or the termination of your employment.

Issues

1. 2015 Financial Accounts

The 2015 Financial Accounts and Tax Returns were your responsibility. They were lodged and approved by you, and showed a loss of over $600,000 for Spectrum Community Outcomes Pty Ltd. The last reports I had received from you and that are still currently in MYOB show a loss of approximately $86,000. The correct position for…

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

AGLC: Emma Valenzuela v Spectrum Community Focus Limited t/as Spectrum Community Focus [2017] FWC 5007
Case: [2017] FWC 5007
Decision Date: 4 OCTOBER 2017

CaseChat Overview and Summary

The case of Emma Valenzuela against Spectrum Community Focus Limited, trading as Spectrum Community Focus, was heard in the Fair Work Commission. Valenzuela brought the claim regarding her termination of employment. The dispute centred around whether her dismissal was unjust and whether she was entitled to any remedy, despite Spectrum asserting that the dismissal was justified on valid grounds.

The central legal issues revolved around the fairness of the dismissal and the nature of the reason provided for the termination. Valenzuela argued that her dismissal was unfair and sought compensation for the breach of her employment rights. Spectrum maintained that the dismissal was justified due to serious misconduct on Valenzuela's part, but they conceded that it was not categorised as serious misconduct under the Fair Work Act. The court needed to determine whether the dismissal was procedurally fair and whether the reason provided was valid, despite not qualifying as serious misconduct.

The Commission found that Valenzuela's dismissal was procedurally fair, as Spectrum had followed the necessary processes before terminating her employment. However, the reason given for the dismissal, while valid, did not meet the threshold of serious misconduct. Consequently, the Commission ruled that Valenzuela was not entitled to compensation for unfair dismissal but acknowledged the valid reason for her termination. The Commission's decision focused on the procedural fairness of the dismissal process and the nature of the reason provided, ultimately concluding that while Valenzuela's dismissal was not unjust, it did not warrant compensation.

No orders were made for compensation for unfair dismissal, but the dismissal was upheld as procedurally fair.

Orders