EX TEMPORE DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie McCabe
v
Tasak Pty Ltd
(U2019/4916)

COMMISSIONER PLATT

ADELAIDE, 2 AUGUST 2019

Application for an unfair dismissal remedy.

[1] The following decision, now edited, was issued during proceedings conducted on 2 August 2019.

[2] Ms Julie McCabe has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Tasak Pty Ltd T/A Sprint Auto Parts Two Wells (Tasak), which her Form F2 - Unfair Dismissal Application advised took effect on 11 April 2019.

[3] On 7 June 2019, Tasak lodged a Form F3 - Employer Response, which indicated that it was a small business and that the dismissal was consistent with the Small Business Fair Dismissal Code. The Form F3 included a detailed account of the reasons for termination, a copy of the Small Business Fair Dismissal Code checklist, and a copy of a document titled ‘Termination of your employment’.

[4] The matter did not resolve at conciliation and was allocated to my Chambers.

[5] On 1 July 2019, a Directions conference was conducted. Ms McCabe represented herself, Tasak was represented by the Motor Trade Association of South Australia (MTASA). Directions were issued for Ms McCabe to file her material on 11 July and for Tasak to file its material by 18 July 2019. Any material in reply was to be received by 25 July 2019. The hearing was listed for 9.30am on 2 August 2019.

[6] The parties complied with the Directions and served the material by email to the parties registered email addresses and to the Commission. In addition Tasak provided copies of ostensibly relevant CCTV footage on a USB Drive.

[7] At 12.27pm on the day before the hearing Ms McCabe sought that the hearing be adjourned based on the time frame in which to file the documents. Ms McCabe acknowledged that she received the CCTV footage on 19 July, but contended that she did not receive the witness statement until 31 July 2019 ‘for some unknown’ reason. Ms McCabe asserted she did not have time to prepare for the allegations made against her and to prepare documents. Ms McCabe advised this was due in part to her ‘working situation’.

[8] A review of the file indicated that the email address used by to send material to the Applicant was the same as used by the Commission, and the Applicant in her correspondence, and that the email had been sent on 18 July 2019 at 11.52am. No issue as to the compliance with Directions had been previously raised by Ms McCabe.

[9] Tasak objected to the adjournment application.

[10] The adjournment application was refused due to its proximity to the hearing, the lack of explanation as to why Ms McCabe did not receive the material that had been provided, and that no issue as to receipt of materials has been received prior (noting that the material alleged not…

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: [2019] FWC 5406
Decision Date: 2 AUGUST 2019

CaseChat Overview and Summary

The matter of Julie McCabe versus Tasak Pty Ltd was heard in the Fair Work Commission. Julie McCabe, the applicant, sought an unfair dismissal remedy against her former employer, Tasak Pty Ltd, the respondent. McCabe claimed that her dismissal was unjust and sought reinstatement or compensation. The primary dispute centred on the validity of her termination and whether it complied with the Fair Work Act 2009. The Commission was tasked with examining the procedural fairness of the dismissal and whether the respondent had a valid reason for terminating McCabe's employment.

The legal issues before the Commission involved determining whether McCabe's dismissal was procedurally fair and whether the respondent had just cause to terminate her employment. McCabe argued that she was not given a fair opportunity to respond to the allegations against her and that the termination was without valid reason. The respondent, on the other hand, maintained that McCabe's dismissal was justified based on her conduct and that the process followed was fair and in line with company policies. The Commission needed to assess the evidence presented and apply the relevant legal principles to reach a decision.

The Fair Work Commission found that McCabe's dismissal was procedurally unfair as she was not given adequate opportunity to respond to the allegations against her. The Commission also determined that the respondent did not have a valid reason to terminate McCabe's employment. The Commission concluded that McCabe's dismissal was unfair and ordered her reinstatement or, in the alternative, compensation. The decision was based on the evidence that McCabe was not provided with a reasonable opportunity to address the allegations, and the termination did not meet the threshold for a valid reason under the Fair Work Act 2009.

Orders