Fresh Cheese Co (Aust) Pty Ltd v Franca Viceconte

In the Full Bench of the Fair Work Commission, Franca Viceconte sought to appeal a decision made by Deputy President Gostencnik in relation to an unfair dismissal claim she brought against Fresh Cheese Co (Aust) Pty Ltd. The primary issue was whether the dismissal was harsh, unjust or unreasonable, and if the respondent had a valid and sufficient reason for terminating the employment. The appeal centred on the interpretation of the dismissal's circumstances and whether the dismissal was justified under section 383 of the Fair Work Act 2009.

The central legal issue for the Full Bench was whether Deputy President Gostencnik correctly applied the relevant legal principles in determining that the dismissal was harsh, unjust or unreasonable. Specifically, the appeal questioned the assessment of the proportionality of the dismissal and whether the employer had followed a fair process. The Full Bench also examined whether the Deputy President appropriately considered the respondent's conduct and the employer's response to that conduct.

The Full Bench found that Deputy President Gostencnik erred in his assessment of the dismissal's harshness, unjustness or unreasonableness. The Full Bench held that the dismissal was not proportionate to the respondent's conduct and that the employer had not followed a fair process. The Full Bench also found that the Deputy President had not adequately considered the respondent's conduct and the employer's response to that conduct. As a result, the appeal was allowed, and the Full Bench set aside the decision of the Deputy President. The matter was remitted to the Deputy President for rehearing in light of the Full Bench's findings.