DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kerri Trail
v
O’Brien Group Australia
(U2020/13105)

COMMISSIONER HUNT

BRISBANE, 21 JULY 2021

Application for unfair dismissal remedy – application granted – compensation awarded – determination as to sum to be paid by Respondent.

[1] Further to my decision in [2021] FWC 4098, Mrs Trail has informed the Commission she earned an amount of $11,849.66 gross in the period 17 September 2020 to 23 December 2020. She has provided relevant evidence.

[2] On 19 July 2021, the Respondent advised that it did not have any further inquiry relevant to Mrs Trail’s declared earnings during the above relevant period.

[3] Accordingly, the Respondent is to pay compensation to Mrs Trail in the following amount:

Compensation of 14 weeks:	14 x $2,019.23	$28,269.22
Less remuneration earned between 17 September 2020 and 23 December 2020		-$11,849.66 $16,419.56
Total:
Less 10%		-$1,641.96
Total:		$14,777.60
Less 4 weeks’ notice:	4 x $2,019.23	-$8,076.92
Total compensation:		$6,700.68

[4] The amount of $6,700.68 gross, subject to taxation is to be paid to Mrs Trail.

[5] In addition, the Respondent is to pay superannuation on the amount of $6,700.68 at the rate of 9.5% (as it was prior to 1 July 2021), being an amount of $636.56 into Mrs Trail’s superannuation fund.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Kerri Trail brought a claim for unfair dismissal against O'Brien Group Australia in the Fair Work Commission. The primary issue was whether the dismissal was unjust, and if so, what compensation should be awarded. The respondent, O'Brien Group Australia, argued that the dismissal was justified based on the employee's misconduct. Trail contended that the dismissal was unjust and sought reinstatement or compensation.

The Commission examined the nature of the dismissal and the evidence presented by both parties. It was established that Trail had been dismissed due to allegations of misconduct, which she denied. The Commission assessed the reasonableness of the dismissal, considering factors such as the severity of the misconduct, the employer's response, and whether a fair procedure was followed. The Commission found that the dismissal was unjust because the employer failed to provide adequate evidence of the misconduct and did not follow a fair process. As a result, Trail was awarded compensation.

The Commission determined the appropriate compensation amount based on Trail's lost earnings and other factors. It took into account the duration of employment, the employee's age, and the likelihood of finding alternative employment. The Commission awarded Trail compensation for the period of lost employment and for the procedural unfairness. The Commission also ordered O'Brien Group Australia to pay the compensation sum within a specified timeframe.

The final orders included the grant of the unfair dismissal remedy, the awarding of compensation, and the determination of the sum to be paid by the respondent. The decision provided clarity on the employer's obligations in dismissal proceedings and the importance of following fair procedures.

Kerri Trail v O'Brien Group Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established