[2018] FWC 2080 [Note: An appeal pursuant to s.604 (C2017/2732) was lodged against this decision and the order arising from this decision - refer to decision dated 25 May 2018 [[2018] FWC 2967] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Nichole Knutson
v
Chesson Pty Ltd T/A Pay Per Click
(U2017/13095)

COMMISSIONER CAMBRIDGE

SYDNEY, 1 MAY 2018

Unfair dismissal - no valid reason for dismissal - harsh, unjust and unreasonable dismissal - compensation Ordered.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 9 December 2017. The application was made by Nichole Knutson (the applicant) and the respondent employer is Chesson Pty Ltd T/A Pay Per Click (ACN: 103 244 695) (the employer).

[2] The application indicated that the date that the applicant’s dismissal took effect was 27 November 2017. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) which has involved a Hearing conducted in Sydney on 22 March 2018.

[4] At the Hearing, each of the Parties were unrepresented, as the Commission had earlier issued a Decision [2018] FWC 958 which refused permission that had been sought by the employer to be represented by lawyers or paid agents. The applicant gave evidence as the only witness called in support of her unfair dismissal claim, and the employer’s Director, Mr Stephen Paul Murphy was the only witness who provided evidence for the employer. Mr Murphy cross-examined the applicant, who then in turn, cross-examined Mr Murphy.

Factual Background

[5] The applicant commenced employment with the employer in November 2014. The applicant was engaged in a position that was described as an Online Campaign Manager.

[6] The employer is a small business that has, according to information contained in the Form F3 - Employer Response to Unfair Dismissal Application, employed eight employees. However, the Form F3 also indicated that the employer did not raise any objection to the unfair dismissal application on the basis that the dismissal, if there was a dismissal, was consistent with the Small Business Fair Dismissal Code.

[7] The employer conducts a business described as an online digital marketing agency. This business provides services to develop and promote web sites and improve the reach and performance of client’s web sites. The applicant was engaged to work from the employer’s business premises located at Kalang Road in the Sydney suburb of Elanora Heights.

[8] The terms of engagement of the applicant were reflected in an employment contract document that inter alia, stipulated the hours of work as “9.00 – 5.00 Monday to Friday, with ½ Hour Lunch Break per day, with flexibility depending on client liaison requirement.” 1 The applicant…

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.

Keep reading for free

Create a free CaseChat account to read Knutson v Chesson Pty Ltd t/a Pay Per Click and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FWC 2080
Decision Date: 1 MAY 2018

CaseChat Overview and Summary

Knutson v Chesson Pty Ltd t/a Pay Per Click involved a dispute between an employee and their employer regarding the termination of employment. The employee, Knutson, sought a declaration that the termination was unfair and sought compensation for the unfair dismissal. The case was heard in the Fair Work Commission, an Australian federal workplace relations tribunal. Knutson alleged that the dismissal was unjust, contrary to the requirements of the Fair Work Act 2009.

The legal issues before the Commission were whether Knutson's dismissal was unfair and, if so, whether it was harsh, unjust, or unreasonable. The Commission considered whether the employer had a valid reason for the dismissal and whether the process followed in terminating the employment was procedurally fair. The Commission also had to assess whether the dismissal caused harm to Knutson and if compensation was warranted.

The Commission found that Knutson's dismissal was indeed unfair. It determined that the employer did not have a valid reason for the dismissal and that the process was procedurally unfair. The Commission concluded that Knutson had suffered detriment as a result of the dismissal and that the dismissal was harsh, unjust, and unreasonable. Consequently, the Commission ordered Knutson's employer to pay compensation for the unfair dismissal.

Orders