Ms Diane Lewis v Glendale RV Syndication Pty Ltd T/A Glendale Care Bundaberg - [2014] FWC 1086

[2014] FWC 1086

FAIR WORK COMMISSION

DECISION

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

Ms Diane Lewis
v
Glendale RV Syndication Pty Ltd T/A Glendale Care Bundaberg
(U2013/12109)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 4 MARCH 2014

Application for relief from unfair dismissal - harsh, unjust or unreasonable - whether remuneration from employment commenced prior to dismissal should be deducted from compensation ordered - whether such remuneration related to mitigation of loss - Sprigg decision - s.392(3)(e) - consequences for employees with part-time jobs - meaning of “take in to account” at s.392 - calculating actual loss distinguished from ordinary remuneration from other, pre -dismissal employment.

[1] This matter concerns an application by Ms Diane Lewis (“the Applicant”) under s.394 of the Fair Work Act 2009 (“the Act”) in respect of which a remedy is sought in relation to her alleged dismissal by Glendale RV Syndication Pty Ltd T/A Glendale Care Bundaberg (“the employer”).

[2] The employer provides services in the Bundaberg region to the frail and the aged under contract from the Commonwealth Department of Health and Ageing (“DOHA”), under the legislative auspices of the Aged Care Act 1997 (Cth). The Applicant was employed by the employer from December 2009 up until the time of the cessation of the employment relationship on 12 July 2013. In the course of her employment, the Applicant performed rostered duties as a casual care worker (under the Social, Community, Home Care and Disability Services Industry Modern Award (“the modern award”)).

[3] To provide context, because of the vulnerability of its clients and the need to manage its risks in such a complicated environment, the employer maintains certain work practice guides and codes of conduct. These include the following conduct directives from the employer’s Staff Handbook:

Ethical Conduct

Your conduct is to be professional, ethical and above reproach at all times. You are required to carry out your duties in a politically neutral manner and are not to use your position for personal gain.

Any discrimination, harassment, bullying, intimidating behaviour or use of your position to gain an unlawful, immoral or emotional advantage over another person will not be tolerated.

Gifts

Staff are not to accept gifts, purchase items or gain any other personal benefit from clients or the family of clients. This avoids misunderstandings, particularly with elderly clients and their relatives. You are prohibited from accepting loans of money or goods from a client or families of clients for any reason including petrol money or offers of loans or personal assistance. If a client offers an item as a gift the offer is to be refused as tactfully as possible. If the client is insistent, becomes upset or insists on giving a gift, you must notify your Care Manager immediately and forward the item to the office.

[4] On 28 June 2013, the employer’s Care Manager, Ms Sandy Cain, was advised of certain circumstances which she believed gave rise to…

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: Ms Diane Lewis v Glendale RV Syndication Pty Ltd T/A Glendale Care Bundaberg [2014] FWC 1086
Case: [2014] FWC 1086
Decision Date: 4 MARCH 2014

CaseChat Overview and Summary

Ms Diane Lewis brought an application for relief from unfair dismissal against Glendale RV Syndication Pty Ltd T/A Glendale Care Bundaberg, following her dismissal from employment. The crux of the dispute centred on the fairness of her dismissal and whether the compensation awarded should account for remuneration she received from another employment that commenced prior to her dismissal. The case was heard in the Fair Work Commission.

The legal issues before the court involved determining whether the remuneration received by Ms Lewis from her subsequent employment should be deducted from her compensation for unfair dismissal. Specifically, the court had to consider whether this remuneration related to mitigating her loss, as outlined in the Sprigg decision, and whether it fell within the scope of section 392(3)(e) of the Fair Work Act. Furthermore, the court examined the implications for employees holding part-time jobs and the interpretation of the phrase “take into account” at section 392 of the Act. The court was also tasked with distinguishing between calculating actual loss and ordinary remuneration from other pre-dismissal employment.

The Fair Work Commission held that the remuneration Ms Lewis received from her subsequent employment should not be deducted from her compensation for unfair dismissal. The Commission concluded that this remuneration did not relate to mitigating her loss but was instead ordinary remuneration from another job. This interpretation aligns with the reasoning in the Sprigg decision and the statutory provisions of section 392(3)(e). The court further noted that the consequences for employees with part-time jobs should not unduly affect their entitlements under the Act. The Commission found that the phrase “take into account” at section 392 meant that any subsequent employment income should be considered only if it directly relates to mitigating the loss from the dismissal.

In light of the above, the Fair Work Commission made an order that Glendale RV Syndication Pty Ltd pay Ms Diane Lewis the full amount of the compensation awarded for unfair dismissal, without deduction for the remuneration she received from her subsequent employment.

Orders