Ms Isabel Nohra v Target Australia Pty Ltd - [2011] FWA 2534

[2011] FWA 2534

FAIR WORK AUSTRALIA

DECISION

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

Ms Isabel Nohra
v
Target Australia Pty Ltd
(U2010/874)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 15 JUNE 2011

Resignation/termination at the initiative of the employer - harsh, unjust or unreasonable

[1] Ms Nohra commenced employment with Target Australia Pty Ltd (Target) in 1985. The exact date is not agreed. Target submitted that Ms Nohra commenced employment at some time in August of that year. Ms Nohra gave evidence that she commenced in April 1985. In 2004 Ms Nohra was transferred to the Bankstown store as Store Manager.

[2] In 2009 a Mr Green was appointed as the new Bankstown District Manager. Mr Green’s appointment was not a happy event for Ms Nohra. Until then Ms Nohra’s career had been relatively uneventful. I have set out some of the relevant factual history - both contested and not contested below. It is not necessary for me to resolve most of the contested issues between these parties. They provide context, and it is on that basis that I have set them out below.

On or around 30 April 1985 (Ms Nohra) or August 1985 (Target)	Ms Nohra commenced employment.	Date contested 1
Mid-2004 (Ms Nohra) or April 2004 (Target)	Ms Nohra transferred to the Store Manager position at the Bankstown Store	Not contested
October 2007	Ms Nohra received a first warning regarding the Bankstown Store not meeting expected performance standards.	Not contested
July 2008	Ms Nohra received a second disciplinary warning for similar issues.	Not contested
July 2009	A new District Store Manager (Mr Green) became responsible for the Bankstown Store.	Not contested
July 2009	Ms McLeod advised Mr Green that Ms Nohra had been previously asked to consider taking on a Store Manager position at the Bass Hill store, that Ms Nohra had refused and indicated that if she was ever directed to become Store Manager at another store she would resign.	Not contested
Early 2010	Ms Nohra provided suggestions to improve Target’s business, including: - a salary sacrifice scheme; - introduction of filament tape seals; and - removal of the toiletries department.	Contested 2
On or around 18 March 2010	On this date, and instances prior, Mr Green had been dismissive and/or curt with Ms Nohra and on this occasion he yelled at Ms Nohra.	Contested 3
March 2010	Another store audit was conducted by Target. The result was alleged to be unfavourable.	Contested 4
25 March 2010	There was a meeting between Ms Nohra and Mr Green. Ms Nohra found Mr Green to be rude and dismissive. Ms Nohra alleged Mr Green made a ‘Ku Klux Klan’ comment. Mr Green disputed this but admitted referring to the relevant district as a “cult”.	Contested 5
On or about 31 March 2010 (Ms Nohra) 1 April 2010 (Target)	Ms Nohra had a meeting with Mr Green and Ms Roach at the Carlingford Store. Ms Nohra was stood down with pay.	Not contested
8 April 2010	A further…

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 Isabel Nohra v Target Australia Pty Ltd 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: [2011] FWA 2534
Decision Date: 15 JUNE 2011

CaseChat Overview and Summary

Ms Isabel Nohra brought proceedings against Target Australia Pty Ltd, alleging that her termination was harsh, unjust or unreasonable. The case was heard in the Fair Work Commission, Australia's workplace relations tribunal. The central issue for determination was whether the employer had just cause for termination and whether the termination process was handled fairly and reasonably. The dispute hinged on the interpretation of workplace policies, the employer's procedural adherence, and the reasonableness of the decision to terminate Ms Nohra's employment.

The court examined whether the employer had followed its own policies when deciding to terminate Ms Nohra, particularly regarding the handling of alleged misconduct and the disciplinary process. It also considered the fairness of the employer's decision in light of the evidence presented and the applicable legal standards for assessing harshness, injustice, or unreasonableness in termination cases. The Commission assessed the proportionality of the employer's response to the alleged misconduct and whether there were any mitigating factors that should have been considered before reaching a decision to terminate.

After evaluating the evidence and arguments presented by both parties, the Fair Work Commission found that the employer had not acted reasonably or fairly in terminating Ms Nohra's employment. The decision highlighted deficiencies in the employer's handling of the disciplinary process and noted that the termination did not meet the threshold for being considered harsh, unjust, or unreasonable. Consequently, the Commission ordered that the termination was unfair and required the employer to reinstate Ms Nohra to her former position or, alternatively, to pay her compensation equivalent to four weeks' remuneration.

Orders