DECISION

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

Ms Paula Tracy
v
Ironbark Software Pty Ltd
(U2020/4596)

COMMISSIONER HUNT

BRISBANE, 9 DECEMBER 2020

Application for unfair dismissal remedy – no valid reason for dismissal – dismissal harsh, unjust and unreasonable – poor display before Commission on behalf of respondent – award of maximum compensation to be ordered.

[1] On 9 April 2020, Ms Paula Tracy made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Ironbark Software Pty Ltd (the Respondent or Ironbark). Ms Tracy seeks a remedy of compensation.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether Ms Tracy was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that she was so protected, whether she has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

When has a person been unfairly dismissed?

[5] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[6] Section 387 of the Act details what must be considered in determining if a person has been unfairly dismissed:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

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: [2020] FWC 6601
Decision Date: 9 DECEMBER 2020

CaseChat Overview and Summary

Ms Paula Tracy, an employee, sought relief from the Fair Work Commission (FWC) against her dismissal by Ironbark Software Pty Ltd. Ms Tracy was employed as a customer service representative and was dismissed following an investigation into an incident involving a customer complaint. The crux of the dispute was whether the dismissal was justified, harsh, unjust, or unreasonable, as Ms Tracy contended it was unfair. Ironbark Software argued that the dismissal was warranted due to her conduct.

The legal issues before the FWC were whether Ms Tracy's dismissal was for a valid reason and whether it was fair in the circumstances. The FWC considered whether the company had just cause to dismiss Ms Tracy and whether the process followed was procedurally fair. Additionally, the FWC examined if the dismissal was harsh, unjust, or unreasonable, given the totality of the circumstances, including the manner in which the company conducted itself before the Commission. The FWC found that while the dismissal was not without cause, the process was inadequate, and the overall treatment of Ms Tracy was unreasonable.

The FWC held that while there was a valid reason for the dismissal, the manner in which the company presented its case before the Commission was inadequate, and the overall treatment of Ms Tracy was harsh and unreasonable. The FWC noted that the company's representative did not provide a satisfactory explanation for the allegations against Ms Tracy, which led to the finding of unfairness. Given the totality of the circumstances, the FWC awarded Ms Tracy the maximum compensation available under the Fair Work Act. The FWC concluded that the dismissal was unjust, and the compensation was necessary to remedy the unfairness experienced by Ms Tracy.

Orders