Julie Baker v KVD Resort Management Group Pty Ltd (trading as Great Eastern Motor Inn)

[2014] FWC 6802

[2014] FWC 6802

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Baker
v
KVD Resort Management Group Pty Ltd (trading as Great Eastern Motor Inn)
(U2014/3925)

COMMISSIONER JOHNS MELBOURNE, 29 SEPTEMBER 2014

Application for relief from unfair dismissal - remedy - reinstatement inappropriate.

[1] On 11 September 2014, the Fair Work Commission (Commission), as presently constituted, issued a decision 1 finding that KVD Resort Management Group Pty Ltd (trading as Great Eastern Motor Inn) (Respondent) unfairly dismissed Julie Baker on 8 January 2014.

[2] The Commission was not satisfied that it had been provided with sufficient evidence to determine the question of remedy. Consequently, on 18 September 2014 the Commission issued further directions for the parties to file and serve submissions and further evidence regarding the question of remedy.

[3] Also on 18 September 2014 the Commission issued an Order to Attend to Victoria Hudson, an employee of the Respondent. Ms Hudson had previously filed statutory declarations in the matter but did not appear at the hearing and as such was not able to be cross examined by the Applicant. One of those statutory declarations related to an alleged altercation between the Applicant and Ms Hudson at the Respondent’s premises on 22 July 2014. The Commission required Ms Hudson’s attendance at the hearing to assist in determining whether reinstatement was appropriate in the circumstances.

[4] The matter was relisted for further hearing on 2 October 2014 in Brisbane with a video link to Gympie.

[5] On 23 September 2014 in compliance with the Commission’s directions the Applicant filed her submissions and evidence regarding remedy. The Applicant stated that “There is no option for me to return to work at the Great Eastern Motor Inn, due to a threat I received from Vicki Hudson...I could not return to a job where my safety is at risk.” 2

[6] On 26 September 2014 the Commission received an urgent submission from the Respondent. In that submission, the Respondent stated “(a)s Ms Baker no longer seeks reinstatement and the Great Eastern Motor Inn has lost confidence in the ability of Ms Baker to be able to work harmoniously with any of the other employees ... it would appear pointless to pursue any argument in favour of or against reinstatement”. 3

[7] In all the circumstances of this matter and taking into account the views of the parties, the Commission, as presently constituted, finds reinstatement to be inappropriate. In making this finding the Commission has also had regard to the fact that Respondent is a small business and reinstatement would require the Applicant to work closely with Ms Hudson and under the direct supervision of Mr Connolly. The Commission has no confidence in those working relationships being restored. Through no fault of the Applicant, they would not be harmonious or productive working relationships.

[8] In light of the above finding, the Commission no longer needs to hear from Ms Hudson regarding events on 22 July 2014. Consequently, Ms Hudson is relieved from her obligation to attend the hearing on 2 October 2014. An order setting aside the Order to Attend will be issued with this decision.

[9] The Commission still requires the Respondent to comply with the Directions issued on 18 September 2014, however any further evidence and submissions (to be filed and served by 4.00pm on 30 September 2014) should now be confined to the question of compensation (if any).

[10] The matter remains listed on 2 October 2014 at 3.30pm in Brisbane with a video link to Gympie Magistrates Court.

COMMISSIONER

 1   [2014] FWC 6374

 2   Applicant’s Submissions regarding remedy dated 23 September 2014, para 1

 3   Respondent Submission dated 26 September 2014, para 3

Printed by authority of the Commonwealth Government Printer

<Price code A, PR555980>