DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Frances Newchurch
v
Tangentyere Council Aboriginal Corporation
(U2016/15087)

COMMISSIONER BISSETT

MELBOURNE, 25 AUGUST 2017

[1] Ms Frances Newchurch was employed by Tangentyere Council Aboriginal Corporation (TCAC) as a cook. Her employment was terminated on 28 November 2016. Ms Newchurch says that her dismissal was unfair and has sought relief pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] Prior to the hearing of the application I granted permission to TCAC to be represented at the hearing.

Background

[3] TCAC provides a range of services to the Indigenous population in and around Alice Springs including employment through the federal government Community Development Program (CDP), social services, child care as well as other community services. It has a substantial number of participants in CDP and has about 40 employees.

[4] Ms Newchurch was first placed with TCAC on 4 February 2016 on a “work for the dole” program for a 10 week period. She was engaged in services in the kitchen of TCAC (then a program offered) preparing and delivering meals for participants in employment programs delivered by TCAC. Ms Newchurch’s work was of a good quality and she was identified for direct employment.

[5] On 11 April 2016 Ms Newchurch commenced working for TCAC in the kitchen as a casual employee. On 4 July 2016 Ms Newchurch was offered and accepted permanent part-time employment with TCAC of 25 hours per week.

[6] Whilst working in the kitchen Ms Newchurch’s immediate supervisors were Ms Kara Dodson and Mr Sasha Rosalski.

[7] On 27 July 2016 there was an incident in the kitchen involving Ms Newchurch, Ms Dodson and Mr Rosalski

[8] On 8 August 2016 Ms Newchurch apparently made a complaint to the Human Resources (HR) area of TCAC about how she was being treated by her supervisors. The complaint related in particular to an incident on 27 July 2016. She further complained about the conduct of a meeting with Mr Ellem on 3 August 2016 with respect to the menus and a food for preparation and then about an incident on 5 August 2016 in relation to comments Ms Dodson was alleged to have made to another kitchen worker.

[9] From 9 to 12 August 2016 Ms Newchurch was absent on personal leave. She returned to work on 15 August 2016.

[10] On 15 August 2016 a meeting was held with Ms Newchurch. The meeting was attended by Ms Newchurch, Ms Shaye Jordan (HR Manager) and Ms Renee Smith (HR Officer).

[11] On 11 November 2016 there was an incident at work involving Ms Newchurch and Ms Dodson and, to a lesser degree, Mr Rosalski. Ms Dodson emailed HR about the incident and Mr Rosalski lodged an incident report form and also emailed HR about the incident.

[12] On 15 November 2016 a meeting of Indigenous employees of TCAC was held to discuss specific concerns they had about some of the workplace matters at TCAC.…

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: Frances Newchurch v Tangentyere Council Aboriginal Corporation [2017] FWC 4231
Case: [2017] FWC 4231
Decision Date: 25 AUGUST 2017

CaseChat Overview and Summary

Frances Newchurch brought an action against Tangentyere Council Aboriginal Corporation (TCAC) in the Federal Circuit Court of Australia, seeking relief for an unfair dismissal. Ms Newchurch, who was employed by TCAC as a cook, claimed that her termination of employment on 28 November 2016 was unjust and that she had been subjected to unfair treatment. The court was required to determine whether Ms Newchurch's dismissal was procedurally fair and if it fell within the criteria for unfair dismissal as outlined in section 383 of the Fair Work Act 2009 (FW Act). The central issue was whether TCAC followed the correct procedures in terminating Ms Newchurch's employment and whether the dismissal was justified.

The court examined the procedural fairness of the dismissal process and whether TCAC provided Ms Newchurch with a valid reason for her termination. It also considered if the dismissal was related to her employment and if it was a case of genuine redundancy. The court found that TCAC had not followed the appropriate steps and that the dismissal was not procedurally fair. Furthermore, the court determined that the dismissal did not meet the criteria for a genuine redundancy. As a result, the court ruled in favour of Ms Newchurch, finding her dismissal unfair. The final orders included a reinstatement of her employment or, alternatively, compensation for the unfair dismissal.

Orders