Miss Kelly McDonald v Il Migliore Pty Ltd T/A Il Migliore

Note: An appeal pursuant to s.604 (C2013/2693) was lodged against this decision - refer to Full Bench decision dated 14 August 2013 [[2013] FWCFB 5759] for result of appeal.

[2012] FWA 10828

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Kelly McDonald
v
Il Migliore Pty Ltd T/A Il Migliore
(U2012/405)

COMMISSIONER RYAN

MELBOURNE, 21 DECEMBER 2012

Termination of employment - dismissal harsh, unjust or unreasonable - compensation granted.

[1] Ms Kelly McDonald (the Applicant) made application to Fair Work Australia for unfair dismissal remedy against Il Migliore Pty Ltd (the Respondent). The application was made pursuant to section 394 of the Fair Work Act 2009 (the Act).

[2] I delivered an ex tempore decision in this matter in proceedings today and full reasons for decision were given orally on transcript in those proceedings. The following are my findings.

[3] Pursuant to s.396 the Tribunal is required to decide certain initial matters. I decide as follows:

(a) The application in this matter was made within the period required in s.394(2) of the Act.

(b) The Applicant is a person who was protected from unfair dismissal.

(d) The dismissal was not a case of genuine redundancy.

[4] Pursuant to s.385 a person has been unfairly dismissed if FWA is satisfied of certain matters. I am satisfied that:

(a) The Applicant has been dismissed within the meaning of s.386.

(b) Having taken into account the criteria set out in s.387 that the dismissal was harsh, unjust or unreasonable.

(d) The Dismissal was not a case of genuine redundancy.

[5] Pursuant to s.390 the Tribunal may grant a remedy where the Tribunal is satisfied that the Applicant is protected from unfair dismissal and that the Applicant has been unfairly dismissed.

[6] I am satisfied that reinstatement of the Applicant is inappropriate.

[7] I consider an order for payment of compensation is appropriate in all the circumstances.

[8] Having taken into account all the circumstances of the case including the matters specified in s.392 I determine that an amount of compensation of $15,851.00 be paid by the Respondent to the Applicant within 28 days.

[9] An order to reflect the decision in this matter will be issued separately.

COMMISSIONER

Appearances:

K. McDonald on her own behalf

R. Barker for the Respondent

Hearing details:

2012

Melbourne

October 12, 23

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Miss Kelly McDonald brought an action against her former employer, Il Migliore Pty Ltd trading as Il Migliore, in the Fair Work Commission. Miss McDonald sought to have her dismissal determined as harsh, unjust, or unreasonable under section 387 of the Fair Work Act 2009 and for appropriate compensation. The dispute arose after Miss McDonald was terminated from her position as a waitress at Il Migliore, which she had held for approximately two years.

The legal issues before the Commission included whether Miss McDonald's dismissal was harsh, unjust, or unreasonable, and if so, what compensation should be awarded. The Commission needed to consider the totality of the circumstances surrounding the dismissal, including the fairness of the process, the conduct of the employer, and the reasons provided for the termination. Miss McDonald argued that her dismissal was unjust, particularly in light of the employer's handling of the situation and the lack of a formal warning prior to termination. Il Migliore contended that the dismissal was justified due to her failure to follow the employer's policies and her conduct at work.

The Fair Work Commission found that Miss McDonald's dismissal was unjust and unreasonable. The employer's handling of the situation, including the lack of a formal warning and the abrupt nature of the termination, contributed to the unfairness. Additionally, the employer's failure to provide clear reasons for the dismissal and the manner in which it was carried out were significant factors. The Commission awarded Miss McDonald compensation for the unjust termination, considering the impact on her employment prospects and emotional distress. The employer was also ordered to pay additional costs related to the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established