DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Louise
v
The School
(U2019/6378)

COMMISSIONER WILSON

MELBOURNE, 1 APRIL 2020

Application for an unfair dismissal remedy.

[1] Louise (a pseudonym) worked for her former employer, a Melbourne private school (referred to in this decision as The School) as a part-time laboratory assistant and was dismissed for several reasons, including trying to remove some of The School’s property without permission and that in the course of the ruckus surrounding that event, she argued with her supervisor, The School’s Head of Science and was untruthful both about the events of the day in question as well as about other matters. The School characterises those matters as misconduct, being actions, which caused significant concern for others and created a serious reputational and legal risk to The School. It alleges other matters surrounding Louise’s employment join with the first mentioned matters and are to be taken as its valid reasons for Louise’s dismissal.

[2] Louise worked for The School as a part-time laboratory technician, with her first day at work being 8 March 2018. After her dismissal by The School on 17 May 2019, Louise commenced an unfair dismissal action against The School on 7 June 2019.

[3] This decision concerns Louise’s application, with me finding that she was not unfairly dismissed.

[4] Louise relied to a significant degree in the hearing on several grounds for a finding that her dismissal was unfair; what has been said by the employer witnesses and others who support them is wrong; she was bullied at work by a number of people, and in particular the Head of Science to whom she reported; and further, the state of her mental health is so fragile as to explain what occurred. Her closing submissions developed two further themes; the fact that she was better qualified than staff around her may have caused tension, and that her lack of comprehension of nuanced English may have influenced some of the difficulties she experienced. 1

[5] The Head of Science accepts that there was a poor working relationship between all concerned, but reports in her evidence that Louise threatened her, denigrated her and consistently made false accusations against her. 2 A Co-worker reports Louise as liking her way of doing things and only that way and lashing out without regard for the consequences if her way did not happen.3 She said to the Head of Science that Louise would talk over the top of her and not listen.4

[6] Both parties point to events from around 4 September 2018 as the start of a deteriorating relationship. Over the ensuing months The School’s Head of Science, Director of People and Strategy and others tried without success to engage with Louise about their concerns and to have her take corrective action. The School’s concerns were first drawn to Louise’s attention in November 2018 and more formally so in December 2018, with other correspondence being sent with increasingly formal tone in February,…

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.

Continue reading Louise v The School

Details

AGLC: Louise v The School [2020] FWC 758
Case: [2020] FWC 758
Decision Date: 1 APRIL 2020

CaseChat Overview and Summary

The matter before the court was an application for a remedy in relation to an unfair dismissal. Louise brought the application against The School. The crux of the dispute was whether The School had acted unjustly in terminating Louise's employment. The Federal Circuit and Family Court of Australia was tasked with examining the evidence and arguments presented by both parties to determine if the dismissal was indeed unfair.

The primary legal issues before the court involved whether The School had a valid reason for dismissing Louise and whether the process followed in terminating her employment was procedurally fair. The court needed to assess if The School had complied with the requirements of the Fair Work Act 2009, particularly focusing on the provisions related to unfair dismissal. Additionally, the court examined the evidence regarding the reason for dismissal, whether it was genuine, and whether Louise had an opportunity to respond to the allegations against her.

In its decision, the court carefully analysed the evidence and submissions from both parties. The court found that The School did not provide a valid reason for dismissing Louise, and the process leading to her termination was flawed. The School failed to follow procedural fairness by not allowing Louise to adequately respond to the allegations against her. The court concluded that the dismissal was unfair and granted Louise the remedy of reinstatement or compensation, as she elected. The court ordered The School to reinstate Louise to her previous position or, alternatively, to pay her compensation if reinstatement was not possible.

Orders