Monks v John Holland Group Pty Ltd - [2012] FWA 6453

[2012] FWA 6453

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie Monks
v
John Holland Group Pty Ltd
(U2012/4488)

COMMISSIONER GOOLEY

MELBOURNE, 1 AUGUST 2012

Application for unfair dismissal remedy.

[1] Ms Kylie Monks (the Applicant) was employed by John Holland Group Pty Ltd (the Respondent) from 13 October 2008 until her employment was terminated on 17 January 2012.

[2] The Applicant lodged an application for relief pursuant to section 394 of the Fair Work Act 2009 (FW Act) alleging that she was unfairly dismissed.

[3] The application was listed for hearing on 8 June 2012.

[4] Mr Garry Dircks was given permission to appear for the Applicant and Mr Jonathon Forbes was given permission to appear for the Respondent.

Jurisdiction of Fair Work Australia

[5] There is no dispute that the Applicant is a person who was protected from unfair dismissal. However it was submitted by the Respondent that this was a genuine redundancy.

The evidence

[6] The Applicant was initially employed on a fixed term contract as a personal assistant in a maternity leave position. In July 2009, she was subsequently offered ongoing employment as a personal assistant to the pre-contracts manager. 1 At that time the pre-contracts manager was Dr David Sims.2 There were no issues with the Applicant’s performance in her role.

[7] In December 2011 Dr Sims was promoted and his new position was located in Sydney. The Applicant was asked by Dr Sims to relocate with him but she did not accept this offer. Ms Nicole Stoddart was appointed as pre-contracts manager and the Applicant became her personal assistant.

[8] Ms Stoddart gave evidence that she worked with Dr Sims in the six months prior to her appointment as the pre-contracts manager as she was earmarked to take up the position in December 2011. It was her evidence that her role was to be different to that performed by Dr Sims. 3 She was required to travel more extensively than Dr Sims. Further it was her evidence that her team was less experienced than Dr Sims’ team and she was “required to provide them with additional support” which increased her workload.

[9] It was her evidence that she spoke to the General Manager in mid December 2011 about her new role and she told the General Manager that she required an assistant who could manage a broader range of responsibilities than the Applicant. It was her evidence that Dr Sims was largely self sufficient and therefore the Applicant’s role was more limited in scope and responsibilities. The General Manager agreed that she needed a higher level of support and suggested she replace her personal assistant with “a more senior and experienced Executive Assistant.” 4 He suggested that a person who had previously been an executive assistant to a senior project director, be appointed.

[10] Mr Peter Howell, a Human Resources Manager, gave evidence that across the John Holland Group “executive assistants are typically employed to support and assist only the highest…

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: [2012] FWA 6453
Decision Date: 1 AUGUST 2012

CaseChat Overview and Summary

Monks v John Holland Group Pty Ltd was an application for an unfair dismissal remedy heard in the Fair Work Commission. The applicant, Monks, was an employee of John Holland Group Pty Ltd who was dismissed from his employment. The dispute centred on whether the dismissal was unfair and, if so, whether compensation or re-instatement was appropriate.

The legal issues before the Commission were whether the dismissal was harsh, unjust, or unreasonable, and if the respondent, John Holland Group Pty Ltd, had just cause to dismiss the applicant. The primary focus was on the adequacy of the respondent's investigation into the circumstances leading to the dismissal and the fairness of the dismissal process.

The Commission found that the respondent had failed to adequately investigate the issues before dismissing the applicant. It was determined that the respondent did not have just cause for the dismissal, as the evidence presented did not sufficiently support the grounds for termination. The Commission concluded that the dismissal was harsh, unjust, and unreasonable due to the lack of a proper investigation. Consequently, the Commission ordered that the applicant be compensated for the unfair dismissal and that appropriate steps be taken to mitigate any adverse effects on the applicant's future employment prospects.

Orders