Grove v Help Enterprises - [2014] FWCFB 6288

[2014] FWCFB 6288

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

Grove
v
Help Enterprises
(C2014/4875)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT ASBURY
COMMISSIONER SPENCER

SYDNEY, 15 SEPTEMBER 2014

Appeal against decision [2014] FWC 3168 of Senior Deputy President Richards at Brisbane on 21 May 2014 in matter number U2013/16788.

[1] This is an appeal by Mrs Linda Grove (the Appellant) against a decision 1 (Decision) of Senior Deputy President Richards in relation to an application that the Appellant made under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for what she contended was an unfair dismissal.

[2] The Senior Deputy President found that, in the circumstances, the Appellant’s dismissal was not harsh, unjust or unreasonable and that therefore there was no unfair dismissal. As a result, the Senior Deputy President dismissed the Appellant’s application.

[3] At the hearing of this appeal, the Appellant was not represented. Help Enterprises (the Respondent) sought permission to be represented by Mr A Harding of Counsel. Permission was granted on the basis that doing so would enable the matter to be dealt with more efficiently. While the matter was not significantly complex, the circumstances of the matter, including the nature of the Appellant’s submissions, created a sense of complexity in identifying the Appellant’s argument and formulating an appropriate response such that we were satisfied that permission to be represented should be allowed.

Background

[4] The Appellant was employed by the Respondent on 3 April 2013 as a full time Senior Employment Consultant. Her employment was terminated on 11 December 2013. The employer claimed that the reason for her termination was that her position was no longer required due to a restructure of the enterprise.

[5] While the employer contended that the Appellant’s position was no longer required, it did not press a claim under s.389 of the Act. Thus, the Senior Deputy President did not determine whether or not there was a genuine redundancy as defined by s.389. The Senior Deputy President considered all of the factors he was required to consider under s.387 of the Act and concluded that, in all the circumstances, the dismissal was not harsh, unjust or unreasonable and therefore that the application should be dismissed.

The Appeal

[6] The Appellant’s primary contention on appeal is that she was denied procedural fairness on the basis that there were witnesses who she would have liked to compel to attend the Fair Work Commission (the Commission), but the Senior Deputy President did not allow the Appellant to compel the attendance of all of these witnesses. It is the Appellant’s submission that had these witnesses been in attendance, the Appellant would be able to prove that the true reason for her dismissal was that she had exposed a fraud that had occurred within the organisation.

[7] The Senior Deputy President made the following findings in relation to the Appellant’s submissions on the fraud issue:

“Ms Grove may contend that the decision making was unnecessary and that her…

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.

Keep reading for free

Create a free CaseChat account to read Grove v Help Enterprises and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FWCFB 6288
Decision Date: 15 SEPTEMBER 2014

CaseChat Overview and Summary

Grove has appealed against the decision of Senior Deputy President Richards, handed down on 21 May 2014, in which she dismissed his unfair dismissal claim. The claim was based on the argument that he had been constructively dismissed. The decision was handed down in Brisbane, and the matter was assigned the number U2013/16788. The primary issue for the court to decide was whether Grove had been constructively dismissed from his employment with Help Enterprises. This involved examining whether there had been a repudiation of the contract of employment by the employer, and whether the dismissal was unfair within the meaning of the Fair Work Act 2009.

The court reviewed the evidence presented and the arguments of both parties. It found that there was no evidence to support Grove’s claim that he had been constructively dismissed. The court considered the employer’s conduct in light of the relevant legal principles, and concluded that there was no repudiation of the contract of employment by the employer. Furthermore, the court found that the employer had not acted in a manner that would lead a reasonable person in Grove’s position to believe that the contract had been terminated. The court found that Grove’s dismissal was not unfair.

The appeal was dismissed by the court. The court upheld the decision of the Senior Deputy President and found that Grove’s claim for unfair dismissal was not substantiated. Consequently, Grove’s appeal was unsuccessful, and the original decision of the Senior Deputy President was affirmed.

Orders