DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Dudley
v
Mhilian Pty Ltd
(U2020/7409)

COMMISSIONER SIMPSON

BRISBANE, 6 JANUARY 2021

Application for unfair dismissal – Applicant summarily dismissed – Alleged misconduct –whether Applicant complied with the Small Business Fair Dismissal Code – Misconduct not a valid reason for dismissal – Dismissal Unfair – Applicant did not seek reinstatement – Compensation ordered

[1] On 29 May 2020 Ms Michelle Dudley made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Sylvan Beach Resort CTS 25728.

[2] In the Form F3 – Employer Response to unfair dismissal application, the correct legal identity of the Respondent was provided as Mhilian Pty Ltd. The employer said it had one employee at the time of dismissal.

[3] I listed the matter for a directions hearing on 10 August 2020. At this hearing, Ms Hilary Mockridge of the Respondent gave evidence that the Employer was Mhilian Pty Ltd as trustee for H & I Mockridge trading as Sylvan Beach Resort. She said the payslips said Sylvan Beach Resort.

[4] Ms Dudley said she had never heard of this name and did not know that this was her employer. I advised Ms Dudley that I was going to allow her time to conduct her own research on the correct legal identity of the Respondent, and to refer back to chambers to advise if she agreed with Ms Mockridge and required the application to be amended.

[5] It was not ultimately contested that the Ms Dudley’s employer was Mhilian Pty Ltd. The matter was listed for hearing via telephone on 29 September 2020. Ms Dudley was self-represented, and Ms Mockridge, Director, appeared for the Respondent. At the hearing, both parties agreed for the matter to be conducted as a determinative conference, rather than a formal hearing.

[6] In the Form F2 – Unfair Dismissal Application, Ms Dudley submitted that she was notified of the dismissal and the dismissal took effect on 11 May 2020. In the Form F3 – Employer Response, the Respondent agreed with these dates. At the determinative conference, Ms Dudley submitted that in fact she was not aware that she was dismissed on 11 May 2020. Ms Dudley contends that she was made aware of her dismissal when she received her termination letter on 18 May 2020.

[7] The termination letter, dated 18 May 2020 and signed by Ms Mockridge, stated the following:

“The reason for the termination is due to repeated abusive and disrespectful behaviour towards myself together with disclosure and discussion of confidential business information to third parties. This behaviour is deemed to be totally unacceptable and untenable as far as your employment with this business is concerned.”

[8] Ms Mockridge contends that the Applicant was dismissed without notice on 11 May 2020.

Small Business Fair Dismissal Code

[9] It was not disputed by Ms Dudley that the Respondent was a…

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 Michelle Dudley v Mhilian Pty Ltd

Details

AGLC: Michelle Dudley v Mhilian Pty Ltd [2021] FWC 36
Case: [2021] FWC 36
Decision Date: 6 JANUARY 2021

CaseChat Overview and Summary

The case involved Michelle Dudley, who brought an application for unfair dismissal against her former employer, Mhilian Pty Ltd. The Applicant was summarily dismissed from her position, and she alleged that the dismissal was unfair. The central dispute was whether the dismissal complied with the Small Business Fair Dismissal Code and whether the alleged misconduct was a valid reason for dismissal. The matter was heard in the Fair Work Commission.

The primary legal issues the court needed to address were whether the dismissal was justified under the relevant employment legislation and whether the dismissal complied with the provisions of the Small Business Fair Dismissal Code. The Applicant contended that the dismissal was unfair because it was not based on a valid reason and did not follow the required procedures. The employer, on the other hand, argued that the dismissal was justified due to the Applicant's alleged misconduct.

The court found that the dismissal was not justified, as the misconduct cited by the employer was not a valid reason for terminating the employment. Additionally, the court determined that the dismissal did not comply with the Small Business Fair Dismissal Code, as the Applicant was not provided with the opportunity to explain the alleged misconduct before being dismissed. Consequently, the court ruled that the dismissal was unfair. The Applicant did not seek reinstatement, and as a result, the court ordered compensation for the Applicant.

In summary, the Fair Work Commission found that the dismissal was unfair as it was not based on a valid reason and did not follow the required procedures under the Small Business Fair Dismissal Code. The court ordered compensation for the Applicant, as she did not seek reinstatement.

Orders