Karen Albert v Techni-Clean Australia - [2011] FWA 2665

[2011] FWA 2665

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Karen Albert
v
Techni-Clean Australia
(U2010/12795)

DEPUTY PRESIDENT SAMS

SYDNEY, 12 MAY 2011

Application for unfair dismissal remedy - unsatisfactory performance - breach of respondent’s policies - valid reasons for dismissal - lack of procedural fairness - reinstatement inappropriate - modest compensation order.

[1] This decision will determine an application for an unfair dismissal remedy, filed by Ms Karen Albert(‘the applicant’), pursuant to s 394 of the Fair Work Act 2009(‘the Act’). The applicant was dismissed from her employment as a Graffiti Removalist by Techni-Clean Australia Pty Ltd (‘the respondent’), on 15 September 2010. As a conciliation conference on 20 October 2010 failed to settle the applicant’s claim, it proceeded to arbitration.

BACKGROUND

[2] The applicant had worked in the industry of graffiti removal for the past five years. She worked as a Grade 1 Graffiti Removalist for the respondent from June 2009, after her previous employer, Urban Maintenance Services (‘UMS’), lost the City of Sydney Council contract and 15 employees of UMS were retained by the respondent. The applicant’s letter of dismissal, dated 15 September 2010, was expressed as follows:

Dear Karen,

Re: Non-Compliance with Company Policy and Procedures

Upon commencement of employment at Techni - Clean Australia, you signed the Company Policies which detail standards to which all those involved in the company, must adhere to. As an employee of Techni - Clean Australia, it is your responsibility that these Policy and Procedures are conformed to on a daily basis. It has been noted by your Supervisors and Senior Management that you have been in breach of some of the Company’s Policy and Procedures relating to Employee Performance, Occupational, Health and Safety, Training, Motor Vehicles and Employee Behaviour. It is a requirement of your position that you act in accordance with these policies. Non-compliance or breach of Techni - Clean Australia’s Policy and Procedures may result in termination of employment, depending on the severity of reoccurrence of these actions.

Since July 2010, there has been various occasions where your Supervisor has offered you additional training on how to improve your performance and enhance your skill set, submit the daily paperwork and using plant and equipment correctly. It has been noted that on more then [sic] one instance, you have refused to participate in the required training or have not demonstrated the new skills or procedures implemented into the workplace which has resulted in a decrease in your performance level. Management would also like to remind you that under no circumstances are employees to remove company property from the premises without permission by Senior Management. It has been noted that you took home company property this week and on the 24th August 2010.

Due to the matter mentioned above regarding non-compliance and breach of the Company’s Policy and Procedures, Senior Management has made the decision to terminate your employment with Techni - Clean Australia, effective immediately. It is Techni - Clean Australia’s responsibility to provide…

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: [2011] FWA 2665
Decision Date: 12 MAY 2011

CaseChat Overview and Summary

The case of Karen Albert against Techni-Clean Australia was heard in the Fair Work Commission, where Ms Albert sought a remedy for her alleged unfair dismissal. Ms Albert, an employee of Techni-Clean, was dismissed on the grounds of unsatisfactory performance and breach of the respondent’s policies. She contested the dismissal, arguing that the reasons provided were not valid and that the dismissal process lacked procedural fairness. The central legal issues revolved around whether the employer had just cause for dismissal and if the process adhered to procedural fairness standards. Additionally, the court had to determine if reinstatement was appropriate or if compensation would be a more suitable remedy.

The Fair Work Commission examined the evidence and arguments presented by both parties. The employer provided documentation and testimonies supporting the claim of unsatisfactory performance and policy breaches. Ms Albert, in turn, presented evidence suggesting procedural deficiencies in the dismissal process and questioned the validity of the reasons given. The court meticulously assessed the evidence to determine if the dismissal was justified and if the process was fair. It was established that while the employer had valid reasons for dismissal, the process did not fully comply with procedural fairness requirements. The court found that while reinstatement was not suitable, a modest compensation order would adequately address the procedural shortcomings and provide Ms Albert with appropriate redress.

In its decision, the Fair Work Commission ruled that Techni-Clean Australia had valid reasons for dismissing Ms Albert, but the process was flawed. The court ordered that Ms Albert be compensated for the procedural deficiencies, but deemed reinstatement inappropriate given the circumstances. This decision balanced the employer's right to manage its workforce with the employee's right to procedural fairness, ensuring a just outcome for both parties. The final orders included a compensation payment to Ms Albert, reflecting the court’s determination that this remedy was appropriate under the circumstances.

Orders