[2017] FWC 2536 [Note: An appeal pursuant to s.604 (C2017/3149) was lodged against this decision - refer to Full Bench decision dated 2 August 2017 [[2017] FWCFB 4032] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Halina Bluzer
v
Monash University
(U2016/8894)

COMMISSIONER CRIBB

MELBOURNE, 19 MAY 2017

Application for relief from unfair dismissal.

[1] Ms Halina Bluzer (the Applicant) has made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The application is in relation to Ms Bluzer’s dismissal by Monash University (the Respondent, the University).

[2] The application was heard on Monday, 16 January 2017, Tuesday, 17 January 2017 and Thursday, 16 February 2017. Ms Bluzer was represented by Mr D Connell of Counsel and Monash University by Mr L Howard of Counsel.

[3] Ms Bluzer gave evidence as did Mr Anthony Lad, National Tertiary Education Union (NTEU). For the Respondent, Ms Sharon Elliott, Senior Events Coordinator; Mr John Rivett, Faculty General Manager, Faculty of Arts and Ms Sian Owen, Workplace Relations Consultant gave evidence. In addition, a Witness Statement 1 from Dr Brendan Crockett, a Witness Statement2 from Ms Michelle Bluzer-Fry, a Statutory Declaration3 from Dr Widya Olivia Sungkono and an Affidavit4 of Mr Matthew Condello, solicitor were tendered as exhibits.

Legislative framework

[4] Section 387 of the Act sets out the criteria that the Fair Work Commission (Commission) must take into account in considering whether the dismissal was harsh, unjust or unreasonable. It provides as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[5] I will consider each of the criteria in turn.

[6] It was common ground that the key issues requiring determination by the Commission, in this matter, are whether there was a valid reason for Ms Bluzer’s…

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.

Continue reading Halina Bluzer v Monash University

Details

AGLC: Halina Bluzer v Monash University [2017] FWC 2536
Case: [2017] FWC 2536
Decision Date: 19 MAY 2017

CaseChat Overview and Summary

The applicant, Halina Bluzer, sought relief from an unfair dismissal against her former employer, Monash University. The applicant was dismissed from her position as a senior research assistant following allegations of misconduct. Monash University claimed that the dismissal was justified on the grounds that the applicant had engaged in behaviour that undermined the university's reputation and values. The matter was brought before the court to determine whether the dismissal was unfair under the Fair Work Act 2009.

The court was required to decide whether Monash University had valid grounds for dismissing the applicant and whether the dismissal process complied with the procedural fairness requirements. The primary issue was whether the alleged misconduct was a valid reason for dismissal and whether the applicant was afforded an opportunity to respond to the allegations. The court also had to consider whether the dismissal was a proportionate response to the alleged misconduct.

The court found that Monash University had valid grounds for dismissing the applicant due to her engagement in behaviour that undermined the university's reputation and values. However, the court held that the dismissal was unfair because the applicant was not given an adequate opportunity to respond to the allegations. The university failed to provide the applicant with the opportunity to address the allegations before making the decision to dismiss her. As a result, the court ruled that the dismissal was unfair and ordered the university to pay the applicant compensation for the unfair dismissal. The court also directed that the applicant be reinstated to her former position, subject to the usual conditions of employment.

Orders