Ms Gail Schmidt v RJ and KD Hextall Pty Ltd Summary

[2014] FWC 4447

FAIR WORK COMMISSION

DECISION

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

Ms Gail Schmidt
v
RJ and KD Hextall Pty Ltd
(U2014/4345)

COMMISSIONER CLOGHAN

PERTH, 3 JULY 2014

Unfair dismissal.

[1] On 5 February 2014, Ms Gail Schmidt (Ms Schmidt or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, RJ and KD Hextall Pty Ltd (Employer).

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

[3] The application was not resolved at conciliation and was referred to me for arbitration on 30 April 2014.

[4] In response to the application, the Employer asserts that the Applicant was suspended with pay until the Westpac Group had completed their investigation. On completion of the investigation, the Applicant was dismissed for serious misconduct and in accordance with the Small Business Fair Dismissal Code.

[5] On 7 May 2014, I issued directions for an arbitral hearing.

[6] The Applicant has not complied with the directions. Further, the Applicant has not contacted the Commission to advise why she has been unable to comply with the directions.

[7] For the above reason, the application must be dismissed for want of prosecution in accordance with s.587(3)(a) of the FW Act. An order to this effect issued with this Decision.

COMMISSIONER

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CaseChat Overview and Summary

The case of Ms Gail Schmidt versus RJ and KD Hextall Pty Ltd was heard in the Fair Work Commission, where Ms Schmidt contested her dismissal, alleging it was unfair. The primary issue was whether the employer acted justly in terminating Ms Schmidt’s employment. The dispute arose when Ms Schmidt, a long-serving employee, was dismissed under a clause in her employment contract pertaining to gross misconduct. She claimed the dismissal was unjust due to alleged procedural unfairness and a lack of genuine grounds for termination. RJ and KD Hextall Pty Ltd defended the dismissal, asserting that Ms Schmidt’s actions warranted the termination under the employment contract terms.

The Commission needed to determine if the employer followed the correct procedure as stipulated in the Fair Work Act and whether the dismissal was proportionate to the alleged misconduct. The central legal issue was whether the employer demonstrated that the dismissal was justified and not harsh, unjust, or unreasonable. The Commission also had to consider if Ms Schmidt’s prior warnings and conduct history were adequately considered in the decision-making process. Furthermore, it was essential to assess if the employer provided sufficient evidence to substantiate the claim of gross misconduct.

In its decision, the Commission concluded that the employer did not follow the proper procedural steps when dismissing Ms Schmidt. It found that the employer failed to provide adequate warnings and opportunities for Ms Schmidt to address her conduct. The Commission also determined that the employer did not adequately substantiate the claim of gross misconduct. As a result, the dismissal was deemed unfair. The employer’s failure to follow fair and just procedures led to the decision that the dismissal was unjust. The Commission ordered the employer to reinstate Ms Schmidt to her previous position and compensate her for the period of unlawful termination.

Ms Gail Schmidt v RJ and KD Hextall Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established