Irene Meadley v Gippsland Waste Services Pty Ltd

[2013] FWC 2716

[2013] FWC 2716

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Irene Meadley
v
Gippsland Waste Services Pty Ltd
(U2012/9311)

COMMISSIONER RYAN MELBOURNE, 2 MAY 2013

Termination of employment - remedy - reinstatement and lost pay.

[1] I issued a decision on 4 April 2013, [2013] FWC 1034, determining that the termination of Ms Meadley’s employment was harsh, unjust and unreasonable, and that reinstatement and restoration of lost pay should be ordered. In that decision I advised the parties that I required further information in order to finalise the orders to be made.

[2] I conducted telephone conferences and hearings on 19 April and 2 May 2013 with the parties. Both parties filed additional material for the Commission to consider. Having considered the submissions of the parties and having the benefit of the conferences with the parties, I have now made the orders under s.391. At the conclusion of a telephone hearing on 2 May 2013 I advised the parties that the comments made on transcript would be translated into a written decision. The following reflects the transcript.

[3] I make this order on the basis that it reinstates the Applicant to the position the Applicant had prior to the dismissal and on that basis the order complies with s.391(1(a) because it reinstates the person by reappointing the person to the position in which the person was employed immediately prior to the dismissal.

[4] In relation to s.391(2), the second paragraph of the order provided continuity to the employee and the second paragraph of the order is an order that is made consistent with the decision to make an order under s.391(2).

[5] In relation to the third paragraph of the order, that is an order which meets the requirements of s.391(3) in that it is an order that causes the employer to pay to the person an amount for the remuneration lost by the person because of the dismissal.

[6] The order itself is merely to comply with the specific provisions of s.391.

[7] I note the debate that has ensued between the parties as to what may or may not be the future arrangements at work. I make it clear that the order cannot operate to remove rights that the employer may have under the National Employment Standards and clause 17 of the Waste Management Award 2010 which relate to redundancy.

[8] Nor does the order operate in a way which can prevent the parties, the employee or employer, from varying by agreement part time hours of employment in accordance with clause 13 of the Waste Management Award 2010.

[9] Nor does it operate to prevent the employer from exercising its right to determine employment consistent with the National Employment Standards and clause 16 of the Waste Management Award 2010.

COMMISSIONER

Appearances:

J. Hooper and J. Ellingham on behalf of the Applicant

T. Page on behalf of the Respondent

Hearing details:

2013.

Melbourne:

April

May 2

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