Jones v Brite Services - [2013] FWC 3392

[2013] FWC 3392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Jones
v
Brite Services
(U2013/6001)

DEPUTY PRESIDENT GOSTENCNIK

BRISBANE, 29 MAY 2013

Termination of employment - harsh, unjust or unreasonable.

Introduction

[1] Rebecca Jones (Applicant) has made an application under s.394 of the Fair Work Act 2009 (Act) for a remedy for unfair dismissal in which she alleges that on 17 January 2013 she was unfairly dismissed by her employer, Brite Services (Respondent). The Applicant was, until the termination of her employment, employed by the Respondent as the Manager, People and Culture.

[2] The Respondent is a registered company under the Corporations Act 2001 limited by guarantee. The Respondent is located in Broadmeadows, Victoria. It is governed by a Board of elected Directors. The Respondent provides training to and employment for people with a disability and derives its income primarily through government funding and charitable donations. 1 Approximately 150 of its employees have a disability and are the beneficiaries of the Respondent’s employment program. A further 25 employees provide supervision and assistance to the employees with a disability, or participate in the management of the Respondent’s organisation.2 The Respondent is not, and was not at the time it dismissed the Applicant, a “small business employer” to which the Small Business Fair Dismissal Code applied.

Factual context

Commencement and terms of employment

[3] The Applicant’s association with the Respondent began in October 2011 when she was assigned to provide human resources support services to the Respondent by a labour hire agency 3. Approximately four months into this assignment, the Applicant was offered direct employment with the Respondent in the position of acting Manager, People and Culture. The employment was for a fixed term of three months, with an option of a further three months employment.4 The option was exercised, at the conclusion of which, the Applicant was engaged as an on-going employee in the role of the Manager, People and Culture.5

[4] The terms of the Applicant’s on-going employment with the Respondent were not contained in any written instrument, although a draft executive contract had been prepared but not executed as the parties were awaiting the finalisation of the Respondent’s motor vehicle policy. 6 The hours of work for which the Applicant was employed increased from three days to four shortly after the on-going employment commenced.7 On 16 February 2013, the Respondent agreed to a request from the Applicant to alter her working days back to three days per week.8

The Chief Executive Officer

[5] During the Applicant’s employment, the Applicant reported to Ms Julie McKay, the Chief Executive Officer (CEO) of the Respondent. 9 Commencing on 14 December 2012 and during the whole of the period in which the events leading to the termination of the Applicant’s employment occurred, and to which I will return shortly, Ms McKay was absent from work because of ill health. Mr Paul Tant, the Manager of Finance and Corporate Service of the Respondent was Acting CEO for most of this…

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 Jones v Brite Services

Details

AGLC: Jones v Brite Services [2013] FWC 3392
Case: [2013] FWC 3392
Decision Date: 29 MAY 2013

CaseChat Overview and Summary

The case of Jones v Brite Services was heard in the Fair Work Commission, where the primary concern was the termination of the applicant's employment. The applicant alleged that the termination was harsh, unjust, or unreasonable under the Fair Work Act. The employer, Brite Services, defended the decision, stating that it was made in accordance with the company's policies and was not unjust or unreasonable. The central dispute was whether the employer's actions in terminating the employment complied with the statutory requirements for a fair dismissal.

The legal issues that the Commission needed to resolve included whether the employer had just cause to terminate the applicant's employment and whether the termination process was handled in a manner that was fair and reasonable. Specifically, the Commission examined if the employer followed its own policies and procedures when making the decision to terminate and if the applicant was given a fair opportunity to respond to the allegations against them. Additionally, the Commission considered whether the termination was proportionate to the alleged misconduct.

The Commission found that the employer had followed its internal policies in terminating the employment, and that the termination was based on what the employer considered to be valid grounds. However, the Commission also noted that the process leading up to the termination could have been more transparent and fair. The employer did not adequately inform the applicant of the specific reasons for the termination or provide a reasonable opportunity for the applicant to respond to the allegations. As a result, the Commission determined that the termination was unjust and unreasonable. Consequently, the Commission ordered the employer to reinstate the applicant to their previous position and provide compensation for the unlawful termination.

Orders