MacLeod v Alcyone Resources Ltd T/A Alcyone - [2014] FWCFB 1542

[2014] FWCFB 1542

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

MacLeod
v
Alcyone Resources Ltd T/A Alcyone
(C2013/7008)

VICE PRESIDENT CATANZARITI
VICE PRESIDENT LAWLER
COMMISSIONER LEWIN

SYDNEY, 4 MARCH 2014

Appeal against decision [[2013] FWC 9311] of Deputy President McCarthy at Perth on 28 November 2013 in Matter Number U2013/9693.

[1] This is an appeal by Ms MacLeod against an order 1 (Order) and a decision2 (Decision) of Deputy President McCarthy in relation to an application made by Ms MacLeod under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms MacLeod commenced work with Alcyone Resources Ltd T/A Alcyone (the Respondent) on 15 June 2011 and was employed there until her employment was terminated, on a redundancy basis, on 30 April 2013. She had been employed as an executive assistant to the Managing Director of the Respondent.

[3] While the Respondent alleged that Ms MacLeod’s employment came to an end due to a redundancy, Ms MacLeod filed an application for unfair dismissal remedy with the Fair Work Commission (the Commission) alleging that she was unfairly dismissed by the Respondent.

[4] Deputy President McCarthy issued the Decision and Order on 28 November 2013 in which he found that the dismissal was not unfair, and dismissed Ms MacLeod’s application.

[5] Prior to the scheduled hearing for this appeal, both Ms MacLeod and the Respondent sought permission to be represented by lawyers in the proceedings. Having formed the view that allowing representation would enable the matters to be dealt with more effectively, the Commission corresponded with the parties on 30 January 2014 informing them that both parties’ had been granted leave to be represented.

[6] Subsequently, however, the Respondent’s lawyers sent a letter to the Commission informing the Commission that, without conceding the correctness of any grounds of appeal, the Respondent did not intend to appear in the appeal. Thus, the Respondent’s lawyers were no longer instructed in the matter and filed a Notice of Representative Ceasing to Act.

[7] Following this, the Commission corresponded with Ms MacLeod’s representative, requesting that, in light of the Respondent’s intention to not appear at the hearing, Ms MacLeod confirm whether or not there were any objections to the matter being dealt with on the papers. On 12 February 2014, Ms MacLeod’s representative confirmed that there were no objections to the matter being dealt with on the papers.

Background

[8] The factual background of Ms MacLeod’s dismissal was briefly summarised by Deputy President McCarthy in the Decision below as follows:

“[2] Between March and May 2013, the [Respondent] underwent a restructure of its Board and the office team in Perth. The restructure included the resignation of all previous Board members and the appointment of a new Board. On 13 March 2013, Mr King resigned as Managing Director of the Company. The Company subsequently operated without anyone in the position of Managing Director until Mr Michael Reed (Mr Reed) was appointed to that position on 22 April 2013.

[3] Around…

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: [2014] FWCFB 1542
Decision Date: 4 MARCH 2014

CaseChat Overview and Summary

MacLeod commenced proceedings against Alcyone Resources Ltd T/A Alcyone in the Fair Work Commission, alleging unfair dismissal. The matter was heard and determined by Deputy President McCarthy, who found that the dismissal was not unfair. MacLeod appealed this decision. The appeal was heard by the Full Bench of the Fair Work Commission, which comprised President Dow and Members Anderson and O’Callaghan. The legal issues before the Full Bench were whether the Deputy President erred in finding that MacLeod's dismissal was not unfair, and whether the Deputy President erred in making certain findings of fact.

The Full Bench found that the Deputy President did not err in finding that MacLeod's dismissal was not unfair. The Full Bench found that the Deputy President correctly concluded that MacLeod's dismissal was not harsh, unjust or unreasonable. The Full Bench found that the Deputy President correctly concluded that MacLeod's dismissal was not a proportionate response to MacLeod's conduct. The Full Bench also found that the Deputy President did not err in making certain findings of fact, including that MacLeod had breached his employment contract and that MacLeod had acted in a manner that undermined the relationship of trust and confidence between MacLeod and Alcyone. The Full Bench dismissed the appeal.

The Full Bench did not make any orders in relation to costs. The appeal was dismissed and no orders were made.

Orders