DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Milena Molina
v
Brett Galloway
(U2020/4351)

DEPUTY PRESIDENT DEAN

SYDNEY, 31 MARCH 2021

Application for unfair dismissal remedy – unfairly dismissed – compensation ordered.

[1] Ms Milena Molina made an application under s.394 of the Fair Work Act 2009 for an unfair dismissal remedy. Her application named APT Corporation Pty Ltd T/A Brett Galloway Solicitors Barristers & Attorneys (APT) as her employer. However, for reasons set out later in this decision, I am satisfied that Mr Brett Galloway was her employer and have amended the name of the respondent to Brett Galloway (the Respondent).

[2] Her application was heard together with an application made by Mr Raymond Zhai, who had been employed as a solicitor with the Respondent and was dismissed on the same day (together referred to as the Applicants).

[3] This application has a long history and there are a range of matters including jurisdictional objections and procedural matters that need to be dealt with.

[4] Having considered all of the matters required under the Act, I have decided that Ms Molina’s dismissal was unfair and have awarded compensation as a remedy.

The dismissal

[5] Ms Molina commenced employment with Mr Galloway on 2 December 2011 and was in the position of Practice Manager when she was summarily dismissed on 18 March 2020. The termination letter handed to her by Mr Galloway reads as follows:

“At the date and time you receive this letter, which will be between 10.30 am and 11.00 am on Wednesday 18th March, 2020, you are Summarily Dismissed from your employment forthwith for what I consider to be serious misconduct ⁓

1 serious continuing insubordination;

2 attempted intimidation;

3 sabotage;

4 making agreements with others without my knowledge and or consent;

5 any further or other grounds as may be advised.

In the circumstances as I see them, I consider no other course of action would be reasonable nor do I consider it reasonable to continue to work with you at all.

The relevant history goes like this –

1 in May 2019 you demonstrated serious insubordination when a discussion came up concerning my personal choice to act for a homeless person with no money or assets in circumstances where you actively encouraging the staff to work for another client who was refusing to pay some trial fees and who was refusing to pay for fees on sentence on the basis you might be able to recover the fees later.

2 you made the debate one of the rest of the firm versus me and said you and Ray would leave and take the staff with you. This was said in the presence of all staff. You were actively challenging my authority.

3 in my office, shortly thereafter you subjected me to name calling and you elbowed me in the side as you went to slap me. I was dumfounded by your behaviour. I suggested you either go to anger management…

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 1756
Decision Date: 31 MARCH 2021

CaseChat Overview and Summary

Milena Molina has applied for an unfair dismissal remedy against Brett Galloway, her former employer, alleging that she was dismissed without just cause or excuse. The matter was heard in the Fair Work Commission. Molina, who had been employed as a marketing and communications officer, claimed that she was dismissed due to her pregnancy and subsequent maternity leave. Galloway, on the other hand, argued that the dismissal was for poor performance and was not related to her pregnancy.

The central legal issues before the court were whether Molina's dismissal was unfair and if it was related to her pregnancy. The court needed to determine if Galloway had a valid reason for dismissing Molina and if the dismissal process followed the correct procedures. The court also had to consider if the dismissal was discriminatory, given the context of her pregnancy and maternity leave.

The Fair Work Commission found that Molina's dismissal was unfair as it was related to her pregnancy and maternity leave, which are protected attributes under the Fair Work Act. The Commission determined that Galloway failed to provide any substantial evidence to support the claim of poor performance, and the dismissal process lacked procedural fairness. Consequently, the Commission ordered compensation for the unfair dismissal. The court emphasised that employers must ensure that dismissals are not influenced by protected attributes and that the dismissal process adheres to the legal standards.

The Fair Work Commission ordered Brett Galloway to compensate Milena Molina for the unfair dismissal, including payment for lost wages and other entitlements. Additionally, the Commission directed Galloway to provide a formal apology to Molina for the unfair treatment she experienced.

Orders