Heather Bilson v Mission Australia - [2010] FWA 6297

[2010] FWA 6297

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Heather Bilson
v
Mission Australia
(U2010/5506)

COMMISSIONER RYAN

MELBOURNE, 31 AUGUST 2010

Application for unfair dismissal remedy.

DECISION SUMMARY

[1] I find that the termination of Mrs Bilson’s employment by Mission Australia was an unfair dismissal.

[2] I find that reinstatement is not appropriate and that compensation should be paid.

The appropriate amount of compensation is $18,225.00

DECISION

Preliminary

[3] Section 396 of the Act sets out four matters which must be decided in applications of this kind before the merits are considered. These matters are:

“(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(d) whether the dismissal was a case of genuine redundancy.”

[4] I will deal with each of the matters in turn.

Section 396(a)

[5] The application was made on 25 January 2010 and Mrs Bilson had been dismissed on 13 January 2010. Therefore, I find that the application was made within the period required in subsection 394(2), namely, within 14 days after the dismissal took effect.

Section 396(b)

[6] The terms of the Labour Market Assistance Industry Award 2010 [MA000099] applied to Mrs Bilson in relation to her employment with Mission Australia. Therefore, I find that the applicant was protected from unfair dismissal within the meaning of s.382 of the Act.

Section 396(c)

[7] This section has no relevance in these matters as the Small Business Fair Dismissal Code is not applicable to Mission Australia.

Section 396(d)

[8] This section has no relevance in these matters as it is agreed by both parties that the termination of employment of Mrs Bilson was not a redundancy situation.

Unfair Dismissal

[9] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia (FWA) is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.”

[10] Section 385(a) and (d) have been met and s.385(c) have no relevance in these matters.

Section 387

[11] In order to declare whether or not the termination of the applicant’s employment was harsh, unjust or unreasonable, FWA is required to take into account the factors set out in s.387 of the Act. Those factors are as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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

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

Case: [2010] FWA 6297
Decision Date: 31 AUGUST 2010

CaseChat Overview and Summary

The applicant, Heather Bilson, filed an application against Mission Australia seeking remedy for unfair dismissal. The case was heard in the Fair Work Commission, an Australian federal statutory court with jurisdiction over workplace relations matters. Bilson alleged that her dismissal was unjust and that she should be reinstated to her former position or compensated accordingly.

The central legal issues the court needed to address were whether Bilson's dismissal was indeed unfair and if so, what remedy was appropriate. The court examined whether the dismissal complied with the provisions of the Fair Work Act 2009, specifically focusing on whether Mission Australia had a valid reason for the dismissal, and whether the process followed was procedurally fair. Additionally, the court considered whether Mission Australia had taken all reasonable steps to avoid the dismissal.

The Fair Work Commission found that Mission Australia had valid reasons for the dismissal, relating to Bilson's performance and conduct. However, the Commission determined that the process followed in dismissing Bilson was not procedurally fair. The Commission highlighted that Mission Australia failed to provide Bilson with adequate opportunities to address the issues raised against her. Consequently, the Commission ruled that Bilson's dismissal was unfair, and the appropriate remedy was reinstatement to her former position, or if that was not possible, compensation equivalent to what she would have earned had she continued in the role.

Orders