DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ida Wange
v
Atom Resources Pty Ltd
(U2020/11074)

DEPUTY PRESIDENT CROSS

SYDNEY, 8 MARCH 2021

Application for an unfair dismissal remedy.

[1] An application was filed on 15 August 2020 (the Application), by Ms Ida Wange (the Applicant), pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), following her dismissal on 18 June 2020, that took effect on 27 July 2020. The Applicant seeks unfair dismissal remedies of compensation, expressed as “Reimbursement for lost salary.” 1 In these proceedings the Applicant was represented by Mr D Bachir, Solicitor. The Respondent was represented by its Managing Director, Mr Hopes.

[2] The Applicant commenced employment with the Respondent on 22 July 2019. The Respondent stated the Applicant was terminated on the ground of redundancy. The Applicant asserted the dismissal arose from allegations of a breach of confidential information by her and her partner.

[3] The Respondent had claimed that the Application was out of time. That jurisdictional objection was dismissed in a hearing on 30 October 2020 after I determined that the Applicant’s dismissal occurred on 27 July 2020, and so the Application was not out of time (the OOT Decision).

[4] On 30 October 2020, directions were issued to program the manner in which the Application was to proceed to hearing (the “Directions”). The parties complied with the Directions. In particular:

(a) On 3 November 2020, the Applicant filed an Outline of Submissions (the “Applicant’s Submission”), and a statement of the Applicant dated 20 November 2020; and

(b) On 14 December 2020, the Respondent filed an Outline of Submissions (the “Respondent’s Submission”), and an undated “statement” which did not identify the deponent. The Commission was later informed that it was a “joint statement” of Mr Hopes and Ms Michelle Da Costa, the Human Resources Manager of the Respondent. In the hearing that statement was adopted as the evidence of Mr Hopes.

Background

[5] The matter was heard on 21 December 2020. There were only minor factual disputes between the parties. The statements of both the Applicant and Mr Hopes were admitted into evidence and neither was cross-examined. Ms Da Costa was called to give oral evidence regarding a meeting on 29 July 2020, and was cross-examined regarding that evidence.

[6] The Applicant had previously worked for the Respondent from 22 January 2017, until around June 2018, when she left her employment to study in Sweden. In or around October 2018, the Applicant returned to Sydney, and commenced casual employment with the Respondent in the role of Administration/Payroll Administrator. The Business of the First Respondent involved recruitment.

[7] On 22 July 2019, the Applicant commenced full-time employment with the Respondent in the role of "Marketing & Business Optimisation Co-Ordinator" (the Role). On an agreed salary of $85,000.00 per annum plus superannuation. Her responsibilities included devising and implementing the Respondent’s marketing, social media and email marketing strategy, website management, search engine…

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: [2021] FWC 1237
Decision Date: 8 MARCH 2021

CaseChat Overview and Summary

The case of Ida Wange against Atom Resources Pty Ltd was brought before the Fair Work Commission. Ida Wange sought relief for an alleged unfair dismissal. The dispute centred around the termination of her employment by Atom Resources, a company engaged in the resources sector. Wange claimed that her dismissal was unjust and without proper cause, and that the termination breached the Fair Work Act 2009. Atom Resources, on the other hand, argued that the dismissal was justified and in accordance with its internal policies and procedures.

The central legal issues the court needed to address were whether Wange's dismissal constituted unfair dismissal under the Fair Work Act and, if so, what remedy should be awarded. The court had to consider whether the dismissal was for a valid reason related to Wange's capabilities, conduct, or the operational requirements of the company. Additionally, the court needed to determine if the proper procedures were followed in terminating Wange's employment and whether the dismissal was harsh, unjust, or unreasonable.

In its decision, the Fair Work Commission found that Wange's dismissal was indeed unfair. The court determined that Atom Resources failed to follow its own procedural guidelines when terminating Wange's employment, which contributed to the unfairness of the dismissal. The Commission also found that the reason provided for the termination lacked sufficient evidence to substantiate a valid reason related to Wange's performance or conduct. The court concluded that the dismissal was harsh, unjust, and unreasonable, given the procedural shortcomings and the lack of a valid reason for termination. As a result, Wange was awarded reinstatement and compensation for the period of her unjust dismissal.

The final orders included a reinstatement of Wange to her previous position at Atom Resources, along with compensation for lost earnings and other entitlements during the period of the unfair dismissal. Atom Resources was also directed to provide a written apology to Wange and to review its internal policies to ensure compliance with procedural fairness in future terminations.

Orders