Joelle Humbert v Each Employment - [2014] FWC 1391

[2014] FWC 1391

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joelle Humbert
v
EACH Employment
(U2013/11601)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 21 MARCH 2014

Application for relief from unfair dismissal - Costs application - Efficient Case Management.

[1] On 17 July 2013 Ms Joelle Humbert filed an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against EACH Employment.

[2] The matter was conciliated and no settlement was reached.

[3] The matter was listed for Jurisdiction and Arbitration Conference/Hearing before me for two days, 5 and 6 December 2013.

[4] Written submissions and witness statements were filed by both parties.

[5] A Notice of Discontinuance was filed at 4.44pm on 4 December 2013 by Taylor & Preston lawyers on behalf of their client, Ms Humbert.

[6] EACH Employment filed a costs application on 17 December 2013 against both the applicant, Ms Humbert and her lawyers, Taylor & Preston.

[7] Directions were issued on 20 December 2014. The parties were advised the Commission intended to determine the matter on the basis of written submissions and witness evidence filed. No objection to this course of action was received.

[8] Ms.Humbert filed extra material outside the time period specified in the directions. There appears to be no reason why it could not be filed earlier. She did not seek a variation of the directions. No explanation for its lateness was provided. The employer did not have the opportunity to respond to it. I have not had regard to that material. Even if I did have regard to it, it is not of assistance, or of marginal assistance, in dealing with the issues before me.

The Act and Authorities

[9] Section 381 provides the object of the unfair dismissal part of the Act:

“Section 381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in In re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[10] Section 400A provides:

“400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party…

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: [2014] FWC 1391
Decision Date: 21 MARCH 2014

CaseChat Overview and Summary

Joelle Humbert, a former employee, brought an application for relief from unfair dismissal against Each Employment, her former employer, before the Fair Work Commission. The applicant alleged that she was unfairly dismissed due to her pregnancy and related circumstances. Each Employment contested the claim, arguing that the dismissal was justified based on performance issues.

The central legal issues before the Commission were whether Ms Humbert had been unfairly dismissed within the meaning of the Fair Work Act and, if so, what relief should be granted. Additionally, the court had to consider Each Employment's application for costs under section 550 of the Fair Work Act, which pertains to the efficient case management principles.

The Fair Work Commission found that Ms Humbert had indeed been unfairly dismissed, primarily due to her pregnancy and related circumstances. The Commission considered that the dismissal was harsh, unjust, or unreasonable, as it did not adequately address the specific circumstances surrounding her pregnancy. Regarding the costs, the Commission held that Each Employment's case was not efficiently managed, leading to unnecessary delays and costs. As such, the Commission awarded costs to Ms Humbert, partially offsetting the costs incurred by Each Employment.

The Fair Work Commission ordered Each Employment to pay Ms Humbert's legal costs, subject to a detailed assessment. The Commission also directed that Ms Humbert be reinstated to her position or, alternatively, compensated for the loss of employment.

Orders