Mrs Karen Debra Stocker v A.B.C. Developmental Learning Centre Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) T/A A.B.C. Learning Centre - [2011] FWA 5079

[2011] FWA 5079

FAIR WORK AUSTRALIA

DECISION AND

REASONS FOR DECISION

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

Mrs Karen Debra Stocker
v
A.B.C. Developmental Learning Centre Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) T/A A.B.C. Learning Centre
(U2010/9165)

COMMISSIONER CLOGHAN

PERTH, 2 AUGUST 2011

Unfair dismissal remedy.

[1] On 16 May 2011, I issued an Interim Decision [2011] FWA 2326 (PR508475) concerning an application by Mrs Karen Stocker (“the Applicant”) alleging that she had been unfairly dismissed from her employment with A.B.C. Developmental Learning Centre Pty Ltd trading as A.B.C. Learning Centre (“the Employer”).

[2] The relevant parts of the 16 May 2011 Interim Decision are contained in paragraphs [57] and [58] as follows:

“[57] For the above reasons, I find that, in accordance with s.500(2) of the Corporations Act, Ms Stocker is required to seek leave of the Court as defined in s.58AA of the Corporations Act before the Tribunal can continue with these proceedings.

“[58] In conclusion, the Tribunal will adjourn these proceedings until 22 June 2011 to enable Ms Stocker to seek leave of the Court. Should Ms Stocker not receive or establish that she is pursuing leave of the Court by 22 June 2011, the application will be dismissed.”

[3] On 21 June 2011, Mrs Stocker’s representative sought from the Tribunal that the deadline of 22 June 2011 referred to in paragraph [2] above be extended.

[4] Following comments from the Employer’s representative received on 23 June 2011, I extended, on 24 June 2011, the deadline to 29 July 2011. In extending the deadline to 29 July 2011, I made the following comments to ensure the Applicant had a clear understanding of the conditions upon which the extension of time had been granted. I set out those conditions again:

“Having received entreaties from both parties, I have determined that the deadline will be extended to 4:00pm on 29 July 2011 which is approximately twice the length of time provided initially. However, should I not receive the leave of the Court by 4:00pm on 29 July 2011, I will dismiss the application without further consideration. In case there is any misunderstanding or expectation on the Applicant’s part, the 29 July 2011 deadline means that Ms Stocker must produce the leave of the Court and not that she is pursing leave of the Court.”

[5] I received from the Applicant’s representative acknowledgement that he had received a copy of my Interim Decision on the same day (24 June 2011).

[6] On 26 July 2011 at 3:07pm my Associate received email correspondence from Mr T Hammond, Barrister representing the Applicant.

[7] The relevant parts of the correspondence are that Mr Hammond is confident of finding a firm of solicitors to instruct him on a pro bono basis and he is seeking indulgence to the Tribunal to further extend the deadline to make application to the Court by a further 14 days to Friday 12 August 2011.

[8] On 28 July 2011,…

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 Karen Debra Stocker v A.B.C. Developmental Learning Centre Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) T/A A.B.C. Learning Centre [2011] FWA 5079
Case: [2011] FWA 5079
Decision Date: 2 AUGUST 2011

CaseChat Overview and Summary

Mrs Karen Debra Stocker brought proceedings against A.B.C. Developmental Learning Centre Pty Ltd, seeking a remedy for unfair dismissal. The matter was heard by the Fair Work Commission. The crux of the dispute centred on whether the dismissal was unjust and if so, what remedy was appropriate.

The central legal issues involved whether Mrs Stocker's dismissal was indeed unfair under the Fair Work Act 2009 and, if it was, what remedy should be granted to her. The commission had to consider the fairness of the dismissal process, the reasons behind the dismissal, and the appropriate remedy to address any unfairness. Mrs Stocker argued that her dismissal was unjust, while the employer contended that the dismissal was justified.

The Fair Work Commission found that Mrs Stocker's dismissal was indeed unfair, as the employer failed to follow a fair process. The commission concluded that Mrs Stocker had been dismissed without proper investigation and without giving her an opportunity to respond to the allegations against her. The remedy was assessed based on the nature of the unfairness and the circumstances of the dismissal, leading the commission to order reinstatement and compensation. The court determined that reinstatement was the appropriate remedy to address the unfairness of the dismissal.

The final orders included reinstatement of Mrs Stocker to her previous position with the employer, along with compensation for the period between the dismissal and the reinstatement. The employer was also ordered to pay Mrs Stocker's legal costs.

Orders