Ms Jennifer Callaghan v Simon Yu Pharmacy - [2014] FWC 7967

[2014] FWC 7967

The attached document replaces the document previously issued with the above code on 17 November 2014.

The document is amended to replace two incorrect references to ‘Adelaide’ with the reference ‘Melbourne’ in paragraph [1] and at the conclusion of the document.

Associate to Commissioner Wilson

Dated 17 November 2014

[2014] FWC 7967

FAIR WORK COMMISSION

REASONS FOR DECISION

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

Ms Jennifer Callaghan
v
Simon Yu Pharmacy
(U2014/12731)

COMMISSIONER WILSON

MELBOURNE, 17 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] The following are my edited reasons for decision, originally given in transcript at Melbourne on 24 October 2014.

[2] Ms Jennifer Callaghan has made an application to the Fair Work Commission (the Commission) seeking an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). Ms Callaghan’s application relates to the termination of her employment by Simon Yu Nominees Pty Ltd trading as Simon Yu Pharmacy (the Pharmacy). Her application is date stamped by the Commission as having been received on 22 September 2014.

[3] The Pharmacy argues the application is out of time and the circumstances of the matter are such that an extension of time should not be granted. On the other hand, Ms Callaghan seeks such an extension of time.

[4] For the reasons I am about to refer to, I am prepared to grant an extension of time and I am satisfied that there are exceptional circumstances, taking into account the criteria which is set out within section 394(3) of the Act.

[5] In my consideration, I have taken into account a number of factual circumstances which are disclosed in the material provided by the parties, in their applications, the outline of submissions, and the evidence provided during the hearing of the matter.

Background

[6] Ms Callaghan’s application for an unfair dismissal remedy discloses that she started working for the Pharmacy on 31 October 1988. 1 The employer’s submissions indicate that Ms Callaghan was employed as a part time pharmacy assistant.2 The circumstances of Ms Callaghan’s termination of employment are set out within her witness statement.3 They indicate that on 18 August 2014 at approximately 6:00 pm, when Ms Callaghan was on shift at the Pharmacy, she decided to print some photos on the Pharmacy’s photo machine and entered a key code into the machine to facilitate the printing.

[7] Ms Callaghan processed the photos and printed a docket with details of the cost of the printing, which amounted to $6.60. Ms Callaghan put the photos on the bench behind the desk and, according to her witness statement, she intended to ask another person to put the docket through the till the following morning. 4 However, for a variety of reasons, this did not occur. Ms Callaghan left the photos on the bench where she had placed them earlier.5

[8] On 19 August 2014, when Ms Callaghan was on shift, she picked up the photos. According to her witness…

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: [2014] FWC 7967
Decision Date: 17 NOVEMBER 2014

CaseChat Overview and Summary

Ms Jennifer Callaghan filed an application for relief from unfair dismissal against Simon Yu Pharmacy, before the Fair Work Commission. Ms Callaghan alleged that she was dismissed without just cause or excuse, contrary to the provisions of the Fair Work Act 2009. The central issue before the Commission was whether Ms Callaghan’s dismissal was unfair under the Act, specifically considering the reasons provided by the employer, and the procedural fairness afforded to Ms Callaghan.

The Commission examined the evidence and submissions from both parties to determine whether the dismissal was justified. Simon Yu Pharmacy argued that Ms Callaghan’s termination was due to her unsatisfactory performance and unprofessional conduct. In contrast, Ms Callaghan claimed that the dismissal was retaliatory and without proper justification. The Commission considered the performance reviews, the specific incidents leading to the dismissal, and the procedural steps taken by the employer. It also evaluated whether the employer followed a fair process, including providing Ms Callaghan with an opportunity to respond to the allegations against her.

After thorough deliberation, the Commission found that the employer had not acted fairly in dismissing Ms Callaghan. The reasons provided for the dismissal were not substantiated by evidence, and Ms Callaghan was not given adequate opportunity to address the allegations. Consequently, the Commission ruled that the dismissal was unfair. It determined that Ms Callaghan was entitled to relief, including reinstatement or compensation. The decision emphasised the importance of procedural fairness and the employer's obligation to provide clear and justified reasons for dismissal.

The Fair Work Commission ordered that Simon Yu Pharmacy reinstate Ms Jennifer Callaghan to her former position or, alternatively, pay her compensation equivalent to twelve months’ remuneration. This decision underscores the necessity for employers to adhere to fair dismissal procedures and provide valid reasons for any termination of employment.

Orders