Mildred Karodza v The Disability Trust - [2013] FWC 6962

[2013] FWC 6962

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mildred Karodza
v
The Disability Trust
(U2013/6959)

DEPUTY PRESIDENT BOOTH

SYDNEY, 13 SEPTEMBER 2013

Application for relief from unfair dismissal - vehicular accident - fitness of vehicle for use - credibility of evidence - allegation of dishonesty - valid reason for termination - dismissal not harsh, unjust or unreasonable.

[1] In this matter Ms Mildred Karodza (the applicant) asks the Tribunal to exercise its discretion under s.394 of the Fair Work Act2009 (the Act) to grant a remedy for unfair dismissal in relation to the termination of her employment from The Disability Trust (the respondent) on 14 February 2013.

[2] The application was lodged on 25 February 2013 and a telephone conciliation was conducted on 19 March 2013. The matter was not resolved at conciliation and was listed for hearing before me on 1-2 and 15 July 2013.

[3] Submissions and witness statements were received from the applicant and the respondent prior to the first day of hearing pursuant to directions issued by the Fair Work Commission (the Commission) and during the course of the hearing an Order Requiring a Person to Attend was issued.

[4] Witness evidence was given for the applicant by Ms Karodza and Ms Layla Griffiths, (a co-worker of Ms Karodza’s). Ms Griffiths was ordered to attend.

[5] Witness evidence was given for the respondent by Ms Margaret Bowen (Chief Executive Officer for the respondent), Mr Adelee Ayad (Manager of Residential Care Solutions, Sydney for the respondent), Ms Katharine Carney (Executive Manager for the respondent) and Ms Mary Bartlett (Team Leader for the respondent at Rosemeadow House, the applicant’s place of work). Witness statements were prepared for the respondent by Mr Ian Kearney, Mr Matthew Flood, Ms Sharon Morison and Ms Sharon Prosperi. None of these witnesses were required for cross-examination.

[6] By permission of the Commission pursuant to s.596 of the Act, Ms Karodza was represented by Mr Hugh Ford, solicitor and The Disability Trust by Mr Paul Moorhouse of counsel and Ms Jenny Inness, solicitor.

Contentions

[7] The applicant contends that her dismissal was harsh, unjust and unreasonable and thus unfair and that she was the victim of a “cover-up” by the respondent because employees were allowed to drive an unsafe vehicle. 1

[8] The respondent contends that they had a valid reason to dismiss the applicant. They contend that far from being harsh, unjust or unreasonable her dismissal was appropriate in the light of the applicant’s conduct. In particular, as a result of occurrences during the course of investigating the conduct of the applicant, they formed the view that they could no longer trust the applicant to be an honest person.

Factual circumstances

[9] The Disability Trust is a disability support service providing a diverse range of services including supported residential housing, respite accommodation, day activities programs, attendant care services to clients in their own homes, transition to work and job search services. They employ over 800 permanent and…

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: [2013] FWC 6962
Decision Date: 13 SEPTEMBER 2013

CaseChat Overview and Summary

Mildred Karodza, an employee of The Disability Trust, applied for relief from an unfair dismissal, claiming that the dismissal was unjust. The primary dispute arose from an incident involving a vehicular accident that occurred while Karodza was operating a Trust vehicle. The Trust argued that the vehicle was not fit for use at the time of the accident, and consequently, Karodza's actions led to her dismissal. The court had to determine whether the Trust's decision to terminate Karodza's employment was justified, considering the credibility of the evidence presented by both parties and whether there was a valid reason for the termination.

The court identified several key legal issues, including the assessment of the credibility of the testimonies given by Karodza and the Trust's representatives. The court also had to evaluate whether the Trust had a valid reason for Karodza's dismissal and if the dismissal was harsh, unjust, or unreasonable. A significant aspect of the case was the Trust's allegation that Karodza had been dishonest about the vehicle's condition, which the court needed to weigh against Karodza's defence. Additionally, the court had to consider the principles of fairness and equity in employment termination, particularly in relation to the Trust's duty to provide a safe working environment.

After examining the evidence, the court concluded that the Trust's decision to dismiss Karodza was based on a valid reason. The court found that the Trust had presented credible evidence that the vehicle was not fit for use, and Karodza's actions contributed to the accident. The court also found Karodza's evidence lacking in credibility, particularly regarding her claims about the vehicle's condition. Consequently, the court ruled that the Trust's decision to terminate Karodza's employment was not harsh, unjust, or unreasonable. The application for relief from unfair dismissal was dismissed.

The court's final order was that Mildred Karodza's application for relief from unfair dismissal was dismissed, and no compensation was awarded. The court affirmed that The Disability Trust acted within its rights in terminating Karodza's employment based on the presented evidence and valid reasons.

Orders