Mrs Savita Sharma v Acts Care Limited
[2023] FWC 2453
•21 SEPTEMBER 2023
| [2023] FWC 2453 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 – Application for unfair dismissal remedy
Mrs Savita Sharma
v
Acts Care Limited
(U2022/8941)
| COMMISSIONER SPENCER | BRISBANE, 21 SEPTEMBER 2023 |
Compensation decision, valid reason, procedural fairness issues, period of weeks relevant given procedural steps compromised.
A decision was released[1] in this unfair dismissal matter.
The decision provided reasons in relation to the fairness of the termination of the employment of the Applicant. On a substantive and procedural basis, the decision determined that there was a valid reason for the dismissal, but there was associated procedural fairness issues as follows:
“ [134] The full factual matrix of the matter has been taken into account. The decision to terminate the Applicant’s employment was based on valid serious reasons. The termination was a proportionate response to the Applicant’s instances of serious misconduct, being the failure to follow fundamental policies and procedures considering the medication incident and the breach of confidentiality. These two incidents caused a serious risk to the Respondent’s business and were of significant gravity to the employer’s operations.
…
[136] In the circumstances, there were procedural flaws involved in the process employed by the Respondent with regard to the meeting on 8 August 2022 and the absence of the meeting in the show cause process without prior notification, and which affected the Applicant’s ability to respond to the reasons for dismissal. I am therefore satisfied that notwithstanding a valid reason for the dismissal, the Applicant’s dismissal was harsh due to the impact on her circumstances. In this regard, the Applicant was not provided an adequate opportunity to respond to the reasons for dismissal, in accordance with section 387(c) of the Act.”
Directions were set after the release of the decisions requiring confirmation of the weekly payment for ordinary hours relevant to the Applicant. As a result of the decision and the directions, the Respondent’s representative wrote and indicated that they had then paid two weeks’ wages in lieu of notice. The payment was not accompanied by reasons as to why this payment had been made suddenly some 12 months after the termination of the Applicant’s employment.
The parties were in disagreement about the quantum of the weekly payment for the ordinary hours. The basis of each party’s wages figure was not clarified specifically as to whether it was based on ordinary hours, rostered hours or average hours per week. This has necessitated an assessment based on the pay slips and figure provided by the Respondent in paying the notice period, which the Applicant’s representative did not agree with.
As referred to in the decision, the compensation payment in this matter was (as per the reasons) to represent a number of weeks commensurate with the two periods where the Applicant was deprived of a procedurally fair process.
Taking into account the aggregate of those periods less the two weeks’ wages in lieu of notice now paid (but some 12 months after the date of the termination), it is determined that a residual amount of two weeks is payable to the Applicant. This represents two periods to afford procedural fairness in association with the separate circumstances, as set out in the reasons of the primary decision.
It has been taken into account in making this order, that the Respondent had addressed particular issues with the Applicant that represented the valid reason in this matter, but handling a dynamic situation with the Applicant in the Disability Care Industry meant the relevant process was compromised. It is noted that the Respondent had also afforded an additional step to the Applicant, rather than escalating the disciplinary process, in recognition of the Applicant’s pregnant status.
I order accordingly. A separate order will issue to this effect.
COMMISSIONER
[1] [2023] FWC 1927.
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