DECISION NO. 2

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

Michelle Rawson
v
Mudgee Golf Club Ltd
(U2020/2622)

COMMISSIONER CAMBRIDGE

SYDNEY, 10 MARCH 2021

Unfair dismissal - summary dismissal - serious misconduct - valid reason for dismissal - procedural deficiencies - advice of dismissal sent by email - dismissal harsh - nominal compensation provided.

[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 6 March 2020. The application was made by Michelle Rawson (the applicant) and the respondent employer is the Mudgee Golf Club Ltd ABN 28 001 001 305 (the employer or the club).

[2] The application indicated that the date that the applicant’s dismissal took effect was 26 February 2020. Consequently, prima facie, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act. However, the application included a copy of an employment separation certificate dated 26 February 2020, which stated that the date that the applicant’s employment ceased was 11 February 2020.

[3] On 6 April 2020, the Registered Clubs Association of NSW (ClubsNSW) acting on behalf of the employer, filed an employer’s response to the application (Form F3). The Form F3 relevantly indicated that the date that the applicant’s dismissal took effect was 11 February 2020. Consequently, the employer raised a jurisdictional objection on the basis that it asserted that the application had been made out of time.

[4] On 7 April 2020, the application was the subject of unsuccessful conciliation. At the conciliation and in subsequent proceedings, the applicant has been represented by Mr Stephen York. Mr York is not a lawyer or paid agent, and he has represented the applicant in an unpaid capacity. Following the unsuccessful conciliation, the employer requested that its jurisdictional objection be determined before any consideration of the merits of the application was undertaken.

[5] In a Decision issued on 11 September 2020, [2020] FWC 4813, (the Jurisdictional Decision) the Commission dismissed the jurisdictional objection that had been raised by the employer, as the application was made within the 21 day time limit established by subsection 394 (2) (a) of the Act.

Background

[6] The applicant had worked for the employer in two separate periods. The second period of her employment commenced on 14 March 2019, and it concluded with the dismissal of the applicant on 19 February 2020. The applicant was initially employed as a Cook, and in August 2019, she was promoted to the role of Head Chef. The employer operates a golf club with bar and restaurant facilities in the New South Wales country town of Mudgee.

[7] On Thursday, 16 January 2020, the employer’s Bar Supervisor, Mr Rhys George, spoke with the employer’s then Vice President, Ms Carrol Broadley, and he raised allegations of misconduct against the applicant. In particular, Mr George alleged that when he had…

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: [2021] FWC 1171
Decision Date: 10 MARCH 2021

CaseChat Overview and Summary

The case of Michelle Rawson versus the Mudgee Golf Club Ltd involved a dispute regarding the termination of Ms. Rawson's employment. The matter was heard in the Fair Work Commission. Ms. Rawson alleged that she was unfairly dismissed by the Club, which she claimed was summary dismissal for serious misconduct. The Club argued that it had a valid reason to dismiss Ms. Rawson and that the process followed was appropriate.

The legal issues before the Commission included whether the Club had a valid reason to dismiss Ms. Rawson, if the dismissal was procedurally fair, and whether the dismissal was harsh, unjust, or unreasonable. The key points of contention were the alleged serious misconduct, the manner in which the dismissal was communicated, and the adequacy of the compensation provided. Ms. Rawson argued that the dismissal was unfair and that the Club did not follow proper procedures, while the Club maintained that the dismissal was justified and that procedural requirements were met.

The Commission found that the Club had a valid reason to dismiss Ms. Rawson based on the evidence presented. However, it was noted that the manner in which the dismissal was communicated, via email, was not in accordance with the usual practice and was not appropriate. The Commission also determined that the dismissal was harsh, unjust, or unreasonable due to the procedural deficiencies. Despite these findings, the Commission awarded Ms. Rawson nominal compensation, acknowledging that the dismissal had an adverse effect on her, but considering the evidence of her misconduct and the Club's position.

The Commission's final orders included the reinstatement of Ms. Rawson's employment, with the understanding that she would not be reinstated but would be paid nominal compensation. This decision recognised the validity of the dismissal reason but also addressed the procedural issues and the impact of the dismissal on Ms. Rawson.

Orders