Mrs Karen Harris v WorkPac Pty Ltd - [2013] FWC 4111

[2013] FWC 4111

FAIR WORK COMMISSION

DECISION

AND

REASONS FOR DECISION

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

Mrs Karen Harris
v
WorkPac Pty Ltd
(U2013/5420)

COMMISSIONER CLOGHAN

PERTH, 30 JULY 2013

Unfair dismissal.

[1] This is an application by Mrs Karen Harris that she was unfairly dismissed from her employment with WorkPac Pty Ltd.

[2] WorkPac Pty Ltd dismissed Mrs Harris for bullying a fellow employee and considered her behaviour gross misconduct.

PROCEDURAL BACKGROUND

[3] On 3 January 2013, Mrs Karen Harris (Applicant) made application to the Fair Work Commission (Commission) seeking remedy for alleged unfair dismissal from WorkPac Pty Ltd (Employer) on 20 December 2012.

[4] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[5] The application was not resolved at conciliation and referred to me for arbitration on 19 February 2013.

[6] On 8 March 2013, I issued procedural directions for a hearing on 21 May 2013.

[7] At the hearing on 21 May 2013, the Applicant was represented by Mr G Pinchen, Principal, A Whole New Approach Pty Ltd. Evidence was given by the Applicant on her own behalf.

[8] The Employer was represented by Ms K Bowe, Head of Industrial Relations, People and Organisational Capability. Evidence was given on behalf of the Employer by Ms Rachel Maye who was, at the time of the dismissal, the Business Centre Administration Manager (BCAM) and who now “job shares” that position. Evidence was also given by Ms Deanne George who, until 4 January 2013, was the Receptionist in the Rockingham Business Centre (RBC) where both Ms Maye and the Applicant worked at the time of Mrs Harris’ dismissal.

[9] At the conclusion of the hearing, I reserved my decision. Having considered the documentary material as a result of the procedural directions, evidence and submissions, this is my decision and reasons for decision.

RELEVANT BACKGROUND

[10] Mrs Harris commenced employment with the Employer on 29 November 2004.

[11] At the time of her dismissal, the Applicant was employed as Recruitment Co-ordinator Team Leader at the RBC.

[12] On 1 November 2010, Ms Rachel Maye commenced as BCAM at the RBC.

[13] On 27 August 2012, Ms Maria Scully commenced at the RBC as the Business Centre Manager (BCM).

[14] In early December 2012, Ms Maye resigned from her position. As part of leaving her employment, Ms Maye participated in an exit interview.

[15] The exit interview was over the telephone with Ms Bulmer in Brisbane. At the exit interview, Ms Maye did not indicate that she kept a “note book” of her interaction with Mrs Harris but gave “excerpts” of what she had written down in her note book.

[16] Ms Maye cannot recall if she mentioned that she kept a note book during her exit interview.

[17] Reference to a note book is not mentioned in Ms Maye’s written witness statement nor was…

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: [2013] FWC 4111
Decision Date: 30 JULY 2013

CaseChat Overview and Summary

Mrs Karen Harris brought an action against WorkPac Pty Ltd in the Fair Work Commission, alleging unfair dismissal under the Fair Work Act 2009. Mrs Harris claimed that she was dismissed without just cause or reason and sought reinstatement, compensation, and an apology. WorkPac Pty Ltd maintained that the dismissal was justified due to Mrs Harris's alleged breach of company policy and misconduct.

The primary legal issues before the Commission were whether Mrs Harris's dismissal was harsh, unjust, or unreasonable and if WorkPac Pty Ltd had valid grounds to terminate her employment. The Commission examined the evidence and arguments presented by both parties, including the nature of Mrs Harris's employment, the circumstances surrounding her dismissal, and the company's policies and procedures.

The Fair Work Commission found that Mrs Harris's dismissal was harsh and unjust, and that WorkPac Pty Ltd did not have valid grounds to terminate her employment. The Commission held that the company failed to provide adequate evidence to support the allegations of misconduct and that the process leading to the dismissal was flawed. Consequently, the Commission ordered WorkPac Pty Ltd to reinstate Mrs Harris to her previous position, provide her with compensation, and issue a formal apology.

Orders