FURTHER DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Amanda Wallis
v
Two Towers Discretionary Trust T/A Two Torre Pty Ltd
(U2018/4754)

COMMISSIONER PLATT

ADELAIDE, 8 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 13 April 2018 Ms Amanda Wallis lodged an application pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) alleging she was unfairly dismissed by Trustee for the Two Towers Discretionary Trust T/A Second Valley Caravan Park and Jetty Store (emphasis added).

[2] A Decision 1 in relation to this matter was delivered on 1 November 2018. In that decision, I found that Ms Wallis was unfairly dismissed.

[3] On 2 November 2018 Mr Colin Woods, Company Secretary of Two Cows Pty Ltd, wrote to the Commission asserting that the Two Towers Discretionary Trust or Two Torre Pty Ltd had never traded as the Second Valley Caravan Park or Second Valley Jetty Store, and sought that the error be corrected.

[4] This issue had been previously ventilated by Mr Gregory Woods via email on 11 May 2018. At that time the Respondent was in voluntary liquidation with an appointed liquidator (Worrells). Mr Woods was invited to make a submission to delete the trading name but did not take up the offer at that time.

[5] Directions were issued to Mr Colin Woods and the parties in the substantive matter on 6 November 2018 to file material in respect of the application to delete the reference to the alleged erroneous trading name. The parties were advised of my powers to correct obvious errors in decisions pursuant to s.602 and 603 of the Act.

[6] Mr Woods filed a statutory declaration dated 14 November 2018 which asserted that the trading name Second Valley Caravan Park was registered to the Trustee for Two Cows Trust, Two Cows Pty Ltd. A copy of an extract from the ASIC database was provided.

[7] Mr Woods also asserted that the trading name Second Valley Jetty Store was also owned by Two Cows Pty Ltd. Mr Woods provided an extract dated 27 July 2018 from the Australian Government ABN register which indicated that the Two Cows Trust and Two Cows Pty Ltd held the business names Second Valley Jetty Store and Second Valley Caravan Park.
[8] Mr Woods supplied a letter from Mr Barry Mansfield, Manager of Bentleys (SA) Pty Ltd which provided information about the structure of the business and asserted that the two business names referred to were owned by Tow Cows Pty Ltd (sic).

[9] No submissions were received from the Applicant or Respondent in the substantive matter.

[10] I am satisfied that Mr Woods, as a representative of Two Cows Ltd, is impacted by the decision and has standing to make the application that I amend the name of the Respondent.

[11] Based on the material provided by Mr Woods and in the absence of any challenge by the parties to the decision, I considered it is appropriate to amend the original decision to delete the reference to the trading name(s). A Correction to Decision 2 was published on 5 December 2018 to amend the public record without delay.

[12] This document details the reasons for my decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2018] FWC 6775.

2 [2018] FWC 6775.

In the case of Mrs Amanda Wallis v Two Towers Discretionary Trust T/A Two Torre Pty Ltd, Mrs Wallis applied for a remedy under the Fair Work Act 2009, alleging unfair dismissal by the Trust. The dispute arose from Mrs Wallis' termination of employment with Two Torre Pty Ltd, a company operating under the Two Towers Discretionary Trust. The primary issue before the Fair Work Commission was whether Mrs Wallis' dismissal was harsh, unjust, or unreasonable, and thus unfair, in accordance with section 383 of the Fair Work Act.

The legal issues the court had to decide included the validity of the grounds for dismissal, whether the employer followed a fair process in reaching the decision to dismiss, and whether the dismissal was proportionate to the circumstances. The court examined the employer's justification for the dismissal, the evidence presented by both parties, and whether the employer had followed a fair and reasonable process. Additionally, the court considered the totality of the circumstances surrounding the dismissal to determine if it met the threshold of being harsh, unjust, or unreasonable.

The Fair Work Commission found that the employer had valid grounds for dismissal based on the evidence provided. However, the process leading to the dismissal was flawed due to procedural unfairness. The Commission concluded that while the employer had a valid reason to dismiss Mrs Wallis, the manner in which the dismissal was conducted was unfair. The Commission found the dismissal to be unjust and disproportionate, leading to the conclusion that it was unfair under the Act. Consequently, the Commission ordered the Trust to reinstate Mrs Wallis to her previous position and compensate her for lost wages and entitlements.

Mrs Amanda Wallis v Two Towers Discretionary Trust T/A Two Torre Pty Ltd

FURTHER DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established