DECISION

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

Madeline Wait
v
Tenterfield Care Centre Limited
(U2017/11080)

COMMISSIONER CAMBRIDGE

SYDNEY, 10 MAY 2018

Unfair dismissal - alleged serious misconduct - no valid reason for dismissal - procedural deficiencies - harsh, unjust and unreasonable dismissal - reinstatement Ordered.

[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Madeline Patricia Wait (the applicant). The respondent employer is Tenterfield Care Centre Limited (ABN 28 136 819 059)(the employer or Tenterfield Care).

[2] The application was filed on 17 October 2017, and the applicant has been represented by the Health Services Union (the Union).

[3] The application indicated that the date the applicant’s dismissal took effect was 5 October 2017. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[4] The matter was not resolved at conciliation and it has proceeded to arbitration before the Commission in a Hearing conducted at Armidale on 24 January 2018, and at Sydney on 9 April 2018.

[5] At the Hearing, Ms S Harper from the Union appeared for the applicant. The applicant was the only witness called to provide evidence in support of the claim. Ms Harper also provided witness statements from a further three individuals. These statements were admitted into evidence without the requirement for cross-examination of the respective deponents.

[6] The employer was granted permission pursuant to s. 596 of the Act to be represented by lawyers or paid agents, and Ms P Lowson, barrister, instructed by Holman Webb lawyers, appeared for the employer at the Hearing. Ms Lowson introduced evidence from four witnesses who were cross-examined by Ms Harper.

Factual Background

[7] The applicant is a woman of some 61 years of age and she had worked for the employer for about 5 years and seven months. The applicant initially worked as a casual Kitchen Hand, and she was subsequently engaged as a Maintenance/Gardening Officer on a part-time basis. The applicant performed a wide range of general maintenance, gardening, cleaning and associated duties. At different times during the period of her employment, the applicant worked at each of two sites operated by the employer and which are located in the New South Wales regional town of Tenterfield.

[8] The employer is a not-for-profit aged care service provider. The employer provides aged care services at two separate sites that are located approximately 700 metres apart, the Haddington Nursing Home (Haddington) and the Millrace Hostel (Millrace). The employer has more than 100 employees.

[9] In about September 2015, the applicant worked at both Haddington and Millrace, and she was engaged to work 75 hours per fortnight across both sites. From about August 2016, the applicant worked only at Millrace, and she continued to be engaged for 75 hours per fortnight working at the one site.

[10] In March…

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 Madeline Wait v Tenterfield Care Centre Limited

Details

AGLC: Madeline Wait v Tenterfield Care Centre Limited [2018] FWC 2472
Case: [2018] FWC 2472
Decision Date: 10 MAY 2018

CaseChat Overview and Summary

The case of Madeline Wait v Tenterfield Care Centre Limited involved a dispute regarding the termination of employment. Madeline Wait, an employee of Tenterfield Care Centre Limited, was dismissed on the grounds of alleged serious misconduct. Wait contested this dismissal, asserting that it was unfair and without valid reason. The matter was heard in the Fair Work Commission, which was tasked with determining the validity of the dismissal and whether it was harsh, unjust, or unreasonable.

The primary legal issues before the Commission were whether Wait's dismissal was justified on the basis of serious misconduct and whether the procedures followed by the employer were adequate. Additionally, the Commission had to consider whether the dismissal was harsh, unjust, or unreasonable. Wait argued that the employer failed to provide a valid reason for the dismissal and that the procedures were flawed, leading to an unfair outcome.

The Commission found that there was insufficient evidence to support the claim of serious misconduct. Moreover, it was determined that the employer's dismissal process was deficient, lacking procedural fairness. The Commission concluded that the dismissal was harsh, unjust, and unreasonable given the lack of a valid reason and procedural errors. Consequently, the Commission ordered the reinstatement of Wait to her previous position with back pay and compensation for the unlawful termination.

Orders