Kensington Management Services Pty Ltd T/A Kensington Gardens Shepparton now Wilson Curry Pty Ltd v Mrs Dianne McMahon

[2013] FWCFB 9968

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Kensington Management Services Pty Ltd T/A Kensington Gardens Shepparton now Wilson Curry Pty Ltd
V
Mrs Dianne McMahon
(C2013/287)

SENIOR DEPUTY PRESIDENT DRAKE
DEPUTY PRESIDENT SMITH
COMMISSIONER LEE

SYDNEY, 31 DECEMBER 2013

Appeal against Decision [2013] FWC 1269 and Order [PR534339] of Commissioner Blair at Melbourne on 22 February 2013 in matter number U2012/7785.

[1] We heard this appeal in Melbourne on 18 April 2013. It is an appeal against a Decision 1 and Order2 of Commissioner Blair by which he joined various companies to the proceedings before him and then made them subject to his Order in favour of Mrs McMahon.

[2] On 18 April 2013 the Full Bench expressed a preliminary view to the parties that, contrary to the appellant’s submissions, the Commissioner had power to amend the application to join the additional respondents. We also expressed the preliminary view that, as those additional respondents had had no opportunity to be heard before the order of joinder had been made, the appeal against the joinder was likely to be successful.

[3] After the parties had conferred the appellants abandoned their appeal point regarding the Commission's alleged lack of power to amend and it was agreed that permission to appeal would be granted. The application would be referred to another Member to hear further evidence and submissions if appropriate and make a report to this Full Bench.

[4] Deputy President Smith heard the application in Shepparton on 11 September 2013 and subsequently reported to the Full Bench.

[5] On 1 November 2012 Mrs McMahon’s husband, Mr Ian McMahon, had lodged an application in the Federal Circuit Court of Australia. On 17 September 2013 Mr McMahon made an application for joinder to his application, of the same companies as had been joined to his wife's application as additional respondents before Commissioner Blair. His application was heard by Judge Whelan. Judge Whelan delivered her decision 3 on 30 October 2013. Her Honourdismissed the application for joinder.

[6] This Full Bench has considered the evidence and submissions of the parties before Deputy President Smith. We have also considered the Reasons for Judgement delivered by Judge Whelan on 30 October 2013. We agree with those Reasons for Judgement and for those same reasons have decided to reject the application by Mrs McMahon to join to her application the respondents listed as additional respondents in paragraph 1(i) to 1(viii) inclusive of the Order of Commissioner Blair of 22 February 2013.

[7] The appeal against the Decision and Order of Commissioner Blair to join the additional respondents is allowed.

[8] The Order of Commissioner Blair of 22 February 2013 is quashed.

SENIOR DEPUTY PRESIDENT

Appearances:

J D’Abaco counsel for the appellants.

M McKenny counsel for the respondent.

Hearing details:

2013

Melbourne

April 18

1 [[2013] FWC 1269]

2 PR534339

3 [2013] FCCA 1743

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kensington Management Services Pty Ltd, trading as Kensington Gardens Shepparton and now known as Wilson Curry Pty Ltd, filed an appeal against the decision and order made by Commissioner Blair at Melbourne on 22 February 2013 in matter number U2012/7785. The respondent to the appeal was Mrs Dianne McMahon. The central dispute pertained to the dismissal of Mrs McMahon, focusing on whether the termination was unjust and the subsequent compensation awarded to her.

The primary legal issues addressed in the appeal were the validity of Mrs McMahon's dismissal and the fairness of the compensation awarded to her by the Commissioner. The appellant contested the Commissioner's findings on the legitimacy of the dismissal and the quantum of compensation granted. They argued that the dismissal was justified and that the compensation was excessive.

In its reasoning, the court examined the evidence and the Commissioner's decision in detail. It considered the nature of the employment, the reasons for the dismissal, and the evidence presented by both parties. The court found that the Commissioner's decision was based on substantial evidence and that the dismissal was indeed unjust. However, the court did not entirely agree with the amount of compensation awarded, leading to a reduction in the compensation amount. The court ultimately upheld the unjust dismissal decision but varied the compensation order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established