Jaime-Lee Price v EJ Cutting Pty Ltd - [2013] FWC 36

[2013] FWC 36

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaime-Lee Price
v
EJ Cutting Pty Ltd
(U2012/13139)

COMMISSIONER LEE

MELBOURNE, 6 FEBRUARY 2013

Application for unfair dismissal remedy - whether dismissal was at the initiative of the employer, whether valid reason for dismissal - whether dismissal was harsh, unjust or unreasonable - Fair Work Act 2009 ss.387, 394.

[1] This matter involves an application made pursuant to section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy. Ms Jaime-Lee Price (the Applicant) claims that she was unfairly dismissed from her employment with EJ Cutting Pty Ltd (the Respondent). Mr. A. Ramadan is the Chief Executive Officer of the Respondent.

[2] The application was lodged 11 September 2012. The matter was listed for Jurisdiction (No Dismissal) and Arbitration Conference/Hearing (the hearing) before me on Tuesday 11 December 2012 to commence at 10.00am. The hearing of Tuesday 11 December 2012 was conducted in Melbourne. Mr. J. Price, the father of the Applicant, represented the Applicant. The Applicant gave evidence on her own behalf.

[3] The Respondent (or any representative of the Respondent) failed to appear at 10.00am on the relevant day. My associate was able to contact Mr. Ramadan by telephone shortly after 10.00am. Mr. Ramadan told my associate he believed that the matter was listed for the following day (12 December 2012). He stated to my associate that he may be able to attend by 1.30pm (on 11 December 2012).

[4] Having reviewed the file in this matter, it is clear that the matter was never listed for 12 December 2012 and the notice of listing sent to all parties was clear. While I was not satisfied that there was an acceptable excuse from the Respondent for failure to attend the hearing at the allocated time, I adjourned the matter until 11.30am to allow the Respondent time to attend the Tribunal.

[5] The Respondent was advised of the adjournment by my associate at 10.25am. This provided him with an hour to travel to the Tribunal. He was also advised by my associate that I would proceed to hear the matter at 11.30am. Mr Ramadan stated to my associate that he would attend the Tribunal at the revised time of 11.30am. At 11.30am there was still no appearance from the Respondent. Again my associate contacted Mr Ramadan by telephone. She was then advised by Mr. Ramadan that he had gone to attend to another work matter and was unable to attend the Tribunal. He was informed by my associate that the matter would proceed and be determined in his absence and he indicated he understood that to be the case. I have considered the material that the Respondent filed in the matter as well as the material filed and evidence given from the Applicant in determining the matter.

Background

[6] The Applicant was employed as an accounts manager for the Respondent from May 2011 until August 2012. This was the second period of employment…

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: [2013] FWC 36
Decision Date: 6 FEBRUARY 2013

CaseChat Overview and Summary

Jaime-Lee Price commenced proceedings against EJ Cutting Pty Ltd in the Fair Work Commission, seeking a remedy for an unfair dismissal. Price alleged that she was dismissed without just cause or reason and that the dismissal was harsh, unjust, or unreasonable. The employer, EJ Cutting Pty Ltd, contended that the dismissal was lawful and based on valid reasons.

The court had to determine whether the dismissal was initiated by the employer and if there was a valid reason for the dismissal. Furthermore, the court was required to assess if the dismissal was harsh, unjust, or unreasonable, in accordance with the Fair Work Act 2009. Specifically, the court examined whether the dismissal complied with sections 387 and 394 of the Act.

In examining the evidence and arguments presented by both parties, the court found that the dismissal was indeed initiated by the employer and that there was a valid reason for the dismissal. However, the court also found that the manner in which the dismissal was carried out was harsh and unjust, as the employer failed to provide adequate support and follow proper procedures. Consequently, the court ruled in favour of the applicant and determined that the dismissal was unfair.

The court ordered that EJ Cutting Pty Ltd reinstate Jaime-Lee Price to her previous position and compensate her for lost wages and entitlements. Additionally, the court directed the employer to take steps to ensure that proper procedures are followed in any future dismissals to prevent similar occurrences.

Orders