DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mrs. Wendy Smith
v
Aboriginal Hostels Limited
(U2020/6868)

COMMISSIONER RIORDAN

SYDNEY, 6 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 18 May 2020, Ms Wendy Smith (the Applicant), filed with the Fair Work Commission (the Commission) an application (the Unfair Dismissal Application) for an unfair dismissal remedy, pursuant to section 394 of the Fair Work Act 2009 (the Act). The Unfair Dismissal Application named Aboriginal Hostels Limited (the Respondent) as the respondent.

[2] On 11 June 2020, Mills Oakley Lawyers filed a Form F53 on behalf of the Respondent seeking to be its legal representative throughout this matter. Further, on 27 July 2020, Mills Oakley Lawyers filed an amended Form F53 on behalf of the Respondent. The amended Form F53, updated the individual proposed as the representative of the Respondent. This Decision concerns whether the Respondent is to be granted permission to be represented.

Submissions with Respect to Representation

[3] On 8 July 2020, my Chambers wrote to Mills Oakley Lawyers asking them to file written submissions as to why the Commission should permit the Respondent to be represented at the Hearing.

[4] Mills Oakley Lawyers filed submissions on 13 July 2020, on behalf of the Respondent, in accordance with the above direction.

[5] It is the Respondent’s submission that the following factors should be considered when the Commission determines whether to grant the Respondent permission to be represented.

• The Respondent plans to call nine indigenous witnesses that are under the age of sixteen. These witnesses have special needs in relation to their cultural sensitives.

• The Applicant is self-represented, thus the Respondent being granted permission to be represented would assist the Commission to deal with the matter more efficiently.

• Permission to be represented includes preparation of submissions and witness statements and thus the Respondent being granted permission to be represented would assist the Commission to deal with the matter more efficiently

• The Respondent potentially plans to call fourteen witnesses and thus the Respondent being granted permission to be represented would assist the Commission to deal with the matter more efficiently.

• The Respondent is to submit a report authored by an external service provider outlining an investigation into the Applicant’s conduct (the CPM Report). It was submitted that the CPM Report introduces a high level of complexity which would justify the Respondent being represented.

[6] On 21 July 2020, the Applicant filed her submission in support of the Unfair Dismissal Application. These submissions contained the following statement, objecting to the Respondent being granted permission to be represented.

“In respect to representation in this matter, I would be greatly disadvantaged in this process if the Respondent is allowed legal representation in this matter which I cannot afford.” 1

Statutory Provisions

[7] Section 596 of the Act governs whether a lawyer or paid agent is able to appear before the Commission.

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: [2020] FWC 3977
Decision Date: 6 AUGUST 2020

CaseChat Overview and Summary

Mrs. Wendy Smith has brought an application for an unfair dismissal remedy against Aboriginal Hostels Limited in the Federal Circuit and Family Court of Australia. Mrs. Smith was employed by Aboriginal Hostels Limited as a Regional Manager. The dispute centres around the termination of her employment and whether this was done in an unfair manner.

The legal issues before the court were whether the dismissal was harsh, unjust, or unreasonable, and if there was a valid reason related to her capabilities, performance, or misconduct. Mrs. Smith argued that her dismissal was unfair and that there was no valid reason provided by the employer for her termination. Aboriginal Hostels Limited contended that the dismissal was justified due to performance-related issues and other valid reasons.

The court examined the evidence presented by both parties, including the reasons provided for the dismissal and the context in which it occurred. The court considered the employer's right to manage its business and the employee's right to procedural fairness. After careful consideration, the court found that the dismissal was harsh and unreasonable given the circumstances. The employer had not adequately demonstrated that the dismissal was justified based on the reasons provided.

As a result, the court ordered that the dismissal of Mrs. Smith was unfair and that Aboriginal Hostels Limited must reinstate her to her position as Regional Manager, along with other specified orders. The decision underscores the importance of fair processes in employment terminations and the employer's obligation to provide valid reasons for such actions.

Orders