Ms Mariam Dafallah v Melbourne Health - [2011] FWA 7340

Note: An appeal pursuant to s.604 (C2011/6962) was lodged against this decision - refer to Full Bench decision dated 27 April 2012 [[2012] FWAFB 3540] for result of appeal.

[2011] FWA 7340

FAIR WORK AUSTRALIA

DECISION

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

Ms Mariam Dafallah
v
Melbourne Health
(U2010/12331)

COMMISSIONER CRIBB

MELBOURNE, 7 DECEMBER 2011

Application for unfair dismissal remedy.

[1] This decision concerns an application by Ms Mariam Dafallah (the applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) (the Act). It is alleged that the termination of her employment by Melbourne Health (the respondent) was harsh, unjust or unreasonable. The applicant is seeking a remedy in respect of her dismissal.

[2] The matter was subject to telephone conciliation but was not settled. The applicant elected to have the matter arbitrated. Hearings took place on 7 and 8 December 2010 and 8 February 2011 and 4 March 2011. The respondent filed written closing submissions on 16 March 2011 and the applicant filed written submissions in reply on 21 March 2011.

[3] The applicant was represented by Mr M Willoughby-Thomas, solicitor and the respondent by Mr R Millar, of counsel.

[4] Evidence was given by Ms Dafallah, Ms C Dowsing, Registered Nurse Division 1 and Ms N Alimi, cleaner from Melbourne Health, on behalf of the Applicant. On behalf of the respondent, Mr D Milenkovski, Manager Clinical Assistants; Ms N Perez, Associate Nurse Unit Manager, Ms C Aikman, Graduate Nurse and Ms T Tebbutt, Human Resources Consultant, from Melbourne Health, gave evidence.

THE EVIDENCE

APPLICANT

Ms C Dowsing

[5] Ms Dowsing provided a written witness statement 1 and also gave oral evidence.

[6] It was Ms Dowsing’s evidence that she worked two days a week (Thursday and Friday) on Ward 5 West with Ms Dafallah and had been doing so for several years. 2 She said that her evidence was limited to those two days a week in Ward 5 West.3

[7] Ms Dowsing held the view that it was important that clinical assistants be able to undertake tasks when allocated and that they respond to a page as soon as they can. She said that, if they are able to, clinical assistants should inform nursing staff if there was going to be a delay in completing a task. 4 It was stated that there were phones on the wards but not in corridors, lifts or stairwells. A clinical assistant may not be in a ward when a page comes through so there may be a delay getting to a phone.5

[8] With respect to the time it would take to travel between various parts of the hospital, it \was Ms Dowsing’s observation that the lifts could be very slow and that it could take some time to get from the basement to the 5th floor. She said that it should not take more than 5 minutes to answer a page if a clinical assistant was…

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: [2011] FWA 7340
Decision Date: 7 DECEMBER 2011

CaseChat Overview and Summary

Ms Mariam Dafallah, an employee, applied to the Fair Work Commission for an unfair dismissal remedy against her former employer, Melbourne Health. Ms Dafallah alleged that she was dismissed without just cause or procedure, seeking reinstatement, compensation, and legal costs. The Commission was tasked with determining whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The primary legal issue before the Commission was whether Melbourne Health had a valid reason for terminating Ms Dafallah's employment and whether the process followed was fair.

The Commission considered the evidence and submissions from both parties, focusing on the reasons for the dismissal, the procedural fairness of the process, and the overall context of the employment relationship. Melbourne Health argued that the dismissal was due to performance issues and a failure to meet work expectations. Ms Dafallah contended that the dismissal was retaliatory and not based on valid grounds. After thorough deliberation, the Commission found that the dismissal process was flawed, and there were elements of procedural unfairness. The Commission concluded that the dismissal was unjust, as it did not adequately consider Ms Dafallah's potential for improvement and the employer's duty to provide reasonable opportunities for rectification.

Consequently, the Fair Work Commission ordered Melbourne Health to reinstate Ms Dafallah to her previous position, along with compensation for lost earnings. Additionally, the Commission awarded legal costs to Ms Dafallah, reflecting the unjust nature of her dismissal. The decision underscored the importance of procedural fairness and the employer's responsibility to provide adequate support and opportunities for employees facing performance issues.

Orders