Irena Kennedy v Warwick Fabrics (Australia) Pty Ltd - [2025] FWC 850

[2025] FWC 850

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Irena Kennedy
v

Warwick Fabrics (Australia) Pty Ltd

(U2024/9609)

COMMISSIONER SCHNEIDER

PERTH, 26 MARCH 2025

Application for an unfair dismissal remedy

On 18 August 2024, Ms Irena Kennedy (Ms Kennedy) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she has been unfairly dismissed from her employment with Warwick Fabrics (Australia) Pty Ltd (Warwick).

The matter was listed for a hearing on 11 November 2024.

Ms Kennedy was represented by Mr Trainor (support person) at the hearing and Warwick was represented by Mr Wareham from GPS Consulting. Permission for Warwick to be represented was granted under section 596 of the Act for noting that, due to the material before the Commission, it would allow for the matter to be dealt with more effectively and efficiently.

Ms Kennedy gave evidence on her own behalf and Mr Maffey, National Sales Manager, gave evidence on behalf of Warwick. The parties filed written submissions prior to the hearing.

Initial Considerations

It is not disputed that Ms Kennedy was dismissed at the initiative of the Warwick.

Ms Kennedy is a person protected from unfair dismissal as her employment was covered by the Commercial Sales Award 2020.

Ms Kennedy was dismissed on 29 July 2024 and filed her application on 18 August 2024, within the 21-day time period as required under the Act. Ms Kennedy’s dismissal was not a case of genuine redundancy.

Warwick employed in excess of 15 employees at the time of the dismissal, therefore the Small Business Fair Dismissal Code did not apply. Ms Kennedy was employed for greater than six (6) months at the time of her dismissal.

Submissions and Evidence

Applicant

Ms Kennedy commenced employment with Warwick in September 2018 and was employed in the position of Decorative Sales Manager at the time of her dismissal. Ms Kennedy worked both in the showroom and on the road. A report was submitted into evidence, completed by Doctor Mingguo Li, dated 26 May 2023, outlined Ms Kennedy’s duties as “customer relations and servicing….wholesale drapery clients. It includes answering the phones, preparing orders, meeting and serving clients, working in the wholesale showroom, lifting and carrying samples weighing between 10kg to 25kg, and standing on her feet”.

On 3 August 2022, Ms Kennedy was departing from a client site and, when stepping down the kerbside, she felt instant pain in her foot. Following a medical assessment, it was determined that Ms Kennedy had a fifth metatarsal fracture. Initially, it was recommended that Ms Kennedy rest and see if surgery on her injured foot could be avoided. However, as time progressed, it was determined that surgery was the only option.

Ms Kennedy would not return to work at Warwick following her injury on 3 August 2022. Ms Kennedy states that she would have liked to complete a return-to-work program at Warwick. However,…

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 Irena Kennedy v Warwick Fabrics (Australia) Pty Ltd

Details

AGLC: Irena Kennedy v Warwick Fabrics (Australia) Pty Ltd [2025] FWC 850
Case: [2025] FWC 850
Decision Date: 26 MARCH 2025

CaseChat Overview and Summary

Irena Kennedy filed an application with the Fair Work Commission for an unfair dismissal remedy against her former employer, Warwick Fabrics (Australia) Pty Ltd. The primary issue before the Commission was whether Ms Kennedy had been unfairly dismissed and if so, whether the dismissal was unjust. Ms Kennedy was employed as a Decorative Sales Manager and was injured on 3 August 2022. After an absence of over 18 months, Warwick dismissed Ms Kennedy on 29 July 2024, citing her incapacity to return to work. Ms Kennedy argued that she was fit to return to work without restrictions and that Warwick did not consider relevant medical evidence before dismissing her.

The Commission found that Warwick had not adequately reviewed the relevant medical evidence before dismissing Ms Kennedy. Specifically, a medical report dated 8 April 2024, which confirmed that Ms Kennedy was fit to return to work, was not provided to Warwick until the hearing on 11 November 2024. The Commission concluded that Warwick's decision to terminate Ms Kennedy's employment was based on incomplete information and without a valid reason. The Commission further found that Warwick's reliance on external support and lack of internal human resources management expertise contributed to the unfair dismissal. The Commission also noted Ms Kennedy's failure to provide Warwick with the relevant medical report before her dismissal, which might be considered in future remedy determinations.

The Fair Work Commission ruled that Ms Kennedy was unfairly dismissed. The dismissal was unjust as it was not based on a valid reason. The Commission determined that Warwick did not conduct a proper internal investigation and failed to consider all relevant medical evidence before terminating Ms Kennedy's employment. The Commission will contact the parties to arrange a hearing to determine the appropriate remedy for Ms Kennedy.

Orders