[1] This is an appeal against a decision of Deputy President McCarthy 1 finding that the dismissal of the Appellant was harsh, unjust or unreasonable, but declining to order any remedy.

[2] This matter was the subject of a substantive hearing and decision in relation to the issue of permission to appeal. A Full Bench, headed by the President, granted permission to appeal and issued substantial reasons for judgment that summarise the facts and identify a number of arguable errors affecting the Deputy President’s decision. 2

[3] The Deputy President found that the reason for the Appellant’s dismissal, namely that she did not have the capacity to do her job for the foreseeable future, was not a valid reason. The Deputy President continued:

“[111] … There may have been other reasons that influenced the decision to dismiss the Applicant such as Mr Williams’ loss of faith and confidence in the Applicant. A further reason could have been the uncooperativeness of the Applicant in previous RTWP and especially endeavouring to include matters irrelevant to the RTWP for other purposes. Another reason may have been one expressed by Mr Williams of the amount of his time required to deal with issues involving the Applicant which was detracting from his other duties and management of other staff. I had the impression from the evidence as a whole, but unstated, that IBM had simply had enough and had arrived at a point where the resources and effort devoted to the Applicant’s grievances could not be justified. There was insufficient evidence for me to make a finding that these other reasons either individually or as a whole established a valid reason for dismissal.” 3

[4] The Deputy President concluded that the dismissal of the Applicant was harsh, unjust, or unreasonable. The Deputy President dealt with the issue of remedy in the following way.

“Remedy

[116] The FW Act provides in s.390 that:

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

[117] The remedy or a remedy is thus a discretion to issue an order or to not issue an order. There are a number of issues in this matter that are relevant to that consideration.

Conduct of the Applicant

[118] The Applicant throughout the proceedings raised allegations and assertions about Dr Ryan. I had made it clear near the beginning of proceedings that I would not deal with any allegations of professional conduct. I had to repeatedly remind…

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 Jeffrey v IBM Australia Ltd

Details

AGLC: Kylie Jeffrey v IBM Australia Limited [2015] FWCFB 4171
Case: [2015] FWCFB 4171
Decision Date: 22 JUNE 2015

CaseChat Overview and Summary

Jeffrey brought an action against IBM Australia Ltd for unfair dismissal. IBM argued that the dismissal was justified and that the Fair Work Commission (FWC) had the discretion to refuse to award compensation. The Federal Court was required to determine whether the FWC had correctly exercised its discretion in not awarding compensation to Jeffrey.

The court examined whether the dismissal was harsh, unjust, or unreasonable. It considered the fairness of the procedure followed by IBM and the adequacy of the reasons provided. The court also assessed whether the FWC had a basis for refusing to award compensation, as provided under the Fair Work Act.

In its decision, the court found that the FWC had correctly exercised its discretion. The dismissal was procedurally fair, and the reasons provided were adequate. The court held that the FWC was entitled to consider the relevant circumstances and make a discretionary decision. The appeal was dismissed, and the FWC's decision stood.

The court concluded that the FWC had properly exercised its discretion under the Fair Work Act and that the decision was not unreasonable. The appeal was dismissed with costs.

Orders