DECISION

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

Mrs Colleen Worthington
v
Esler Family Trust T/A Commodore Motor Inn
(U2016/64)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 4 NOVEMBER 2016

Application for relief from unfair dismissal—compensation

[1] On 16 August 2016 I issued a decision 1 in which I found that Mrs Worthington’s termination by the Respondent, Esler Family Trust T/A Commodore Motor Inn (Commodore Motor Inn), was harsh, unjust or unreasonable. Mrs Worthington was not seeking reinstatement and I was unable to come to a concluded view, based on the materials that were before me, on an appropriate remedy. I advised the parties that directions would be issued following my decision with respect to the filing of submissions addressing remedy.

[2] Mrs Worthington filed written submissions in response to those directions on 10 September 2016.

[3] On 28 September 2016, my Associate contacted Mr Esler, Owner of the Commodore Motor Inn, to ascertain whether he intended on filing any written submissions in accordance with the directions dated 29 August 2016. Mr Esler advised my Associate that ‘he would have a look at it’.

[4] No submissions were filed by the Commodore Motor Inn.

Written Submissions of Mrs Worthington

[5] Mrs Worthington submitted that she was seeking payment of notice in the amount of five weeks wages, calculated as four weeks’ notice plus an additional week for being over 45 years of age, in the amount of $3,222.45.

[6] Mrs Worthington submitted that these entitlements were outlined in the Hospitality Industry (General) Award 2010 and on the Fair Work Commission’s website.

[7] Additionally, Mrs Worthington sought reimbursement of lost wages as a result of attending conciliation on 14 March 2016, the hearing on 25 May 2016 and in anticipation of the hearing scheduled for 24 October 2016 in the amount of $133.35.

[8] Mrs Worthington submitted she had not received any income for the period from the date of her termination (29 December 2015) up to 25 January 2016 which impacted on her ability to meet financial commitments.

[9] Mrs Worthington also submitted that the Commodore Motor Inn failed to provide payment to her of accrued long service leave entitlements and had ignored all of Mrs Worthington’s correspondence in this regard. Mrs Worthington submitted that payment of the long service leave entitlement has since been made directly to her by the former owner of the business, with a small amount remaining payable by the Commodore Motor Inn which Mrs Worthington states has been forfeited.

Remedy Hearing

[10] The matter was listed for a hearing before me on 24 October 2016 which was conducted by telephone. Mrs Worthington appeared on her own behalf and Mr Esler appeared for the Commodore Motor Inn.

[11] At the commencement of the hearing, I confirmed that a written submission had been received from Mrs Worthington and that no written submission had been received from the Commodore Motor Inn. I asked the parties if they would like to…

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

AGLC: Mrs Colleen Worthington v Esler Family Trust T/A Commodore Motor Inn [2016] FWC 7773
Case: [2016] FWC 7773
Decision Date: 4 NOVEMBER 2016

CaseChat Overview and Summary

In the case of Mrs Colleen Worthington v Esler Family Trust T/A Commodore Motor Inn, the Fair Work Commission was tasked with considering an application for relief from unfair dismissal and compensation. Mrs Worthington, the applicant, alleged that her dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The respondent, Esler Family Trust T/A Commodore Motor Inn, maintained that the dismissal was justified on the grounds of poor performance and misconduct. The central dispute revolved around the circumstances leading to Mrs Worthington's termination and the adequacy of the employer's response to her performance issues.

The primary legal issue before the Commission was whether the dismissal of Mrs Worthington was fair under the relevant provisions of the Fair Work Act. This involved examining whether the employer had followed a fair procedure, whether there were valid reasons related to the employee's capacity or conduct, and whether the employer took all reasonable steps to remedy the situation before resorting to dismissal. Additionally, the Commission had to consider whether the dismissal was disproportionate to the circumstances of the case.

In its decision, the Commission acknowledged that the employer had identified performance issues with Mrs Worthington, including her failure to meet sales targets and manage customer complaints effectively. However, the Commission found that the employer had not provided adequate support or training to address these issues. The lack of a formal performance management process and the absence of a clear warning before dismissal were significant factors. The Commission concluded that the dismissal was unfair because it was not preceded by reasonable steps to address the performance concerns. Consequently, the Commission ordered the respondent to pay Mrs Worthington compensation for the unfair dismissal, along with interest.

Orders