Ms Cheryl Walker v Beachbreak Holidays T/A Ezyflights - [2012] FWA 10193

[2012] FWA 10193

FAIR WORK AUSTRALIA

DECISION

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

Ms Cheryl Walker
v
Beachbreak Holidays T/A Ezyflights
(U2011/14216)

COMMISSIONER ASBURY

BRISBANE, 3 DECEMBER 2012

Application for unfair dismissal remedy.

BACKGROUND

[1] This is an application by Ms Cheryl Rosalie Walker seeking an unfair dismissal remedy in respect of her dismissal by Beachbreak Holidays T/A Ezyflights (Beachbreak). Beachbreak objected to the application on the grounds that Ms Walker was demoted without significant reduction in her remuneration or duties, and further contended that Ms Walker resigned her employment by not returning to work after completing two days in her new position. The jurisdictional objection on the ground of demotion was dismissed by another member of Fair Work Australia on the basis that Ms Walker was not employed by the employer at the time the objection was heard.

[2] The application was then allocated to me to determine whether Ms Walker was dismissed and whether the dismissal was harsh or unreasonable. Beachbreak maintained that Ms Walker was not dismissed and resigned her employment. Ms Walker contended that she was forced to leave her employment through conduct or a course of conduct engaged in by the employer, and that her dismissal was unfair. Ms Walker represented herself at the hearing and Beachbreak was represented by one of its Directors, Mr Jake Bruce.

LEGISLATION

[3] Legislative provisions relevant to the question of whether a person has been dismissed, are as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does…

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.

Keep reading for free

Create a free CaseChat account to read Ms Cheryl Walker v Beachbreak Holidays T/A Ezyflights and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] FWA 10193
Decision Date: 3 DECEMBER 2012

CaseChat Overview and Summary

The case involves Ms Cheryl Walker, an employee, and Beachbreak Holidays trading as Ezyflights, her employer. The dispute arose from an alleged unfair dismissal, with Ms Walker seeking a remedy. The Fair Work Commission, being the tribunal with jurisdiction over such matters, heard the case.

The central legal issues before the tribunal were whether Ms Walker was unfairly dismissed and, if so, what remedy should be granted. The tribunal needed to determine if the dismissal was harsh, unjust, or unreasonable, considering factors such as the fairness of the process and the employer's conduct.

The tribunal examined the circumstances surrounding the dismissal, including the employer's adherence to procedural fairness and the nature of the employer's conduct. It found that Ms Walker was indeed unfairly dismissed, as the employer failed to follow appropriate procedures and acted in a manner that was unjust. The tribunal considered the appropriate remedy and ordered reinstatement and compensation for the period until reinstatement.

The final orders included the reinstatement of Ms Walker to her previous position and the payment of compensation for the period of lost employment. The tribunal also directed the employer to take steps to rectify the unfair dismissal, ensuring compliance with fair work legislation in the future.

Orders