Milena Molina v Brett Galloway - [2022] FWC 776

[2022] FWC 776

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Milena Molina
v

Brett Galloway

(U2020/4351)

Raymond Zhai
v

Brett Galloway

(U2020/4410)

DEPUTY PRESIDENT EASTON

SYDNEY, 6 APRIL 2022

Application for an unfair dismissal remedy – serious misconduct – valid reason – insubordination and intimidation – stale allegations previously dealt with by the employer – unauthorised cash payments – Briginshaw v Briginshaw standard – deficient financial controls – contaminated investigation – lack of procedural fairness – absence of dedicated human resources management specialists – misconduct not proven – remedy – compensation.

Ms Molina and Mr Zhai made unfair dismissal applications against Mr Galloway in early 2020. Both applications were allocated to Deputy President Dean. In March 2021 Deputy President Dean found in favour of Ms Molina and Mr Zhai and ordered Mr Galloway to pay compensation to each applicant.[1]

Mr Galloway appealed and on 1 September 2021 a Full Bench upheld Mr Galloway’s appeals and quashed the decisions of Deputy President Dean.[2] Both matters were eventually remitted to me to determine.

I do not need to record in detail the dreadful history of these matters.[3] I am grateful however for Ms Barry’s patient and consistent representation of Ms Molina and Mr Zhai, as well as Mr Galloway’s fourth legal representative, Mr Moorhouse of Counsel, who appeared in the final hearing and whose professionalism and organisation were a welcome change.

Ms Molina and Mr Zhai gave evidence before Deputy President Dean and were cross-examined at length by Mr Galloway’s second legal representative. Two witnesses gave brief evidence before Deputy President Dean for Mr Galloway. None of those witnesses gave evidence again before me, and instead I have reviewed their filed material and the transcripts of proceedings.

Mr Galloway gave evidence for the first time at a further hearing on 9 December 2021 as did Ms Chantal Lawson, one of Mr Galloway’s clients.

In the proceedings before Deputy President Dean there was a contest about the identity of the employer. Mr Galloway claimed that both Ms Molina and Mr Zhai were employed by a service company, APT Corporation Pty Ltd T/A Brett Galloway Solicitors Barristers & Attorneys. Deputy President Dean found that Mr Galloway was in fact the employer of both Applicants when they were dismissed. In his final closing submissions Mr Galloway conceded that he was the employer.

For the reasons that follow I find that both Ms Molina and Mr Zhai were unfairly dismissed and I have decided to order Mr Galloway to pay compensation to each.

The Evidence

Ms Molina’s work history and payment arrangements

Ms Molina commenced employment with Mr Galloway in 2011 as a casual bookkeeper and receptionist.

Ms Molina says that Mr Galloway was often paid in cash by clients, and often at his home. She gave evidence about having security safes in the office and at Mr Galloway’s home, and says that at one stage there was up to $80,000 in cash kept in a safe at the one of the offices.…

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: [2022] FWC 776
Decision Date

CaseChat Overview and Summary

The applicants, Milena Molina and Raymond Zhai, sought unfair dismissal remedies against their former employer, Brett Galloway, in the Fair Work Commission. The applicants had previously worked for Galloway, a small business employer, as the Practice Manager and a solicitor respectively. The applicants were summarily dismissed in March 2020. The Full Bench of the Fair Work Commission previously upheld appeals by Galloway and quashed the decisions of Deputy President Dean who had found in favour of the applicants. The matter was remitted to Deputy President Easton who found that the applicants had been unfairly dismissed. The Deputy President found that Galloway had no valid reason for the dismissal and that the dismissal was harsh, unjust and unreasonable. The Deputy President ordered Galloway to pay compensation to each applicant in lieu of reinstatement. The Deputy President found that Molina should be compensated in the amount of $41,305.78, less tax, and Zhai should be compensated in the amount of $23,586.41, less tax.

The applicants brought this action pursuant to s.394 of the Fair Work Act 2009 (Cth) and the matter was heard in the Fair Work Commission. The applicants were represented by Ms G Barry, and Galloway was represented by Mr P Moorhouse of Counsel. The final written submissions were lodged in January 2022. Galloway relied on a number of grounds, including the alleged misconduct of the applicants and the application of the Small Business Fair Dismissal Code. The Deputy President found that the applicants had been unfairly dismissed. The Deputy President found that the dismissal was harsh, unjust and unreasonable because the applicants were dismissed for reasons that had already been dealt with by Galloway, and the dismissal was not preceded by any warning, opportunity to respond, or procedural fairness. The Deputy President ordered Galloway to pay compensation to each applicant in the amount of $41,305.78 and $23,586.41 respectively, less tax, within 21 days of the decision.

Orders