DECISION

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

Ms Lui Cheng
v
Griffith University
(U2018/11728)

COMMISSIONER RIORDAN

SYDNEY, 18 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 14 November 2018, Ms Lui (Iris) Cheng (the Applicant) filed an application (the Applicant) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (Cth) (the Act). Prior to her dismissal, the Applicant was employed by Griffith University (the Respondent).

[2] There have been significant delays in progressing the Application through the Commission’s processes, some of which is outlined in the decision of Commissioner Bissett [[2020] FWC 1672] and the decision of the Full Bench [[2020] FWCFB 5863].

BACKGROUND

[3] The Applicant commenced employment with the Respondent on 26 March 2018 as a Student Experience Officer (SEO). The Griffith University General Staff Enterprise Agreement 2012 – 2016 (the Agreement) applied to the Applicant’s employment with the Respondent. The SEO role was classified under the Agreement as a Higher Education Worker Level 4. The Applicant was employed on a continuous basis following completion of the three-month probationary period.

[4] At 5:26 pm on 25 September 2018, Mr Ken Greedy, Director of People and Wellbeing of the Respondent, sent email correspondence to the Applicant confirming the Applicant had completed her probation period:

“Iris,

As I explained to you yesterday and as you have stated in your email you have completed your probation period. Understand that completing a probation period does not mean that you get a fresh start again in regards to performance if there have been identified concerns which were yet to be satisfactorily addressed. Probation periods are used by both parties to assess the suitability for the position to which the staff member had been appointed. At any time during the probation period, either party may decide to end theemployment relationship via appropriate process as outlined in the Agreement. During the probation period if unsatisfactory performance occurs then it is to be addressed in accordance with clause 41.1 of the Agreement. At the end of the probation period there was a decision taken to confirm your appointment, in accordance with clause 41.2 of the Agreement, you will note there is no specific requirement to formally notify you in writing.

Confirmation of appointment does not negate any performance concerns that may have been identified during the probation period, if performance concerns have been identified, yet have not been fully addressed (including ensuring you have enough time to improve), although not at the time possibly considered enough to terminate employment, then these concerns will continue to be addressed with you but under clause 44 of the Agreement- Unsatisfactory Performance, which is what has happened in your case.

In looking at your claim of dispute, you have

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: [2021] FWC 3530
Decision Date: 18 JUNE 2021

CaseChat Overview and Summary

In this case, Ms Lui Cheng sought an unfair dismissal remedy against Griffith University. The university had terminated her employment, and she contested the termination on the grounds that it was unfair. The matter was heard by the Fair Work Commission, which is responsible for addressing employment disputes under the Fair Work Act 2009. The Commission had to determine whether the termination was justified and, if not, whether it should order a remedy.

The primary legal issue before the Commission was whether the grounds for termination were valid and whether the university had followed proper procedures in dismissing Ms Cheng. Ms Cheng argued that the termination was unjust and that the university failed to follow its own policies. Griffith University contended that the termination was based on valid grounds and that the correct procedures were followed. The Commission also had to consider whether the termination was harsh, unjust, or unreasonable in the circumstances.

In its decision, the Fair Work Commission found that the university had not provided adequate evidence to support the grounds for dismissal. The Commission concluded that the university did not follow its own policies and procedures in handling the termination. Additionally, the Commission determined that the termination was unjust and unreasonable. As a result, the Commission ordered that Ms Cheng be reinstated to her position and awarded her compensation for the loss of earnings and entitlements during the period of termination. The Commission also directed the university to apologise to Ms Cheng and to take steps to rectify the procedural breaches.

Orders