DECISION

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

Ms Roslyn Claydon
v
Celotti Workforce Pty Ltd T/A Celotti Workforce
(U2021/1041)

COMMISSIONER SPENCER

BRISBANE, 11 NOVEMBER 2021

Application for unfair dismissal remedy –– alleged serious misconduct – inappropriate conduct and language in the workplace – conduct substantiated – standard of serious misconduct not established – procedural deficiencies in dismissal process – valid reason for dismissal.

INTRODUCTION

[1] Ms Roslyn Claydon (the Applicant) made an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) contending that the termination of her employment with Celotti Workforce Pty Ltd T/A Celotti Workforce (the Respondent) was harsh, unjust and unreasonable.

[2] The Respondent operates a recruitment business with offices in Darwin and an office in Brisbane where the Owner/Director, Mr Celotti and General Manager, Mr Weygood were located. The Applicant had been employed as a Recruitment/Business Development Consultant, for the Respondent, and she worked in the Parap, Darwin Office. The Applicant had been employed by the Respondent for approximately two years and ten months.

[3] The Applicant considered that her dismissal was harsh, unjust and unreasonable and initially sought reinstatement and continuity of service and wages for the interim period, pursuant to s.391 of the Act.

[4] The matter was heard in the Fair Work Commission (FWC) Darwin, with all witnesses (apart from one) providing their evidence there. Mr Weygood, the General Manager, provided his evidence by video from Brisbane FWC. The representatives were located in Brisbane and participated via video link, using Microsoft Teams. The Applicant was represented by Ms Ellie Bassingthwaighte, Solicitor of Hall Payne Lawyers. The Respondent was represented by Ms Theresa Moltoni, Managing Legal Practitioner of IRIQ Law. Both representatives were granted permission to appear, pursuant to s.596 of the Act. Final submissions were provided in writing by consent, at a later date.

BACKGROUND

[5] The Applicant was dismissed for serious misconduct, following complaints about her conduct at the workplace.

[6] The Applicant was advised on Wednesday, 27 January 2021, upon arriving at work, that the Respondent held ‘serious concerns’ regarding her workplace conduct and that she would be stood down with pay from her role, whilst she responded to the matters. The Respondent had endeavoured to contact the Applicant prior to her arriving at work. The Applicant was sent a text message asking her to contact Mr Nathan Weygood. The Applicant was not advised as to the specific nature of the Respondent’s concerns at that time. These were set out in correspondence.

[7] On Thursday, 28 January 2021, the Applicant was presented with a ‘show cause’ letter, outlining some 11 allegations to which the Applicant was directed to respond to, by close of business on 29 January 2021.

[8] The show cause letter signed by Mr Weygood, stated as follows:

“RE: Opportunity to Please Explain

Dear Roslyn

Serious concerns have arisen regarding your conduct in your role as Recruitment/Business Development Consultant at Celotti Australia Pty…

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 6318
Decision Date: 11 NOVEMBER 2021

CaseChat Overview and Summary

The applicant, Ms Roslyn Claydon, sought relief from the Fair Work Commission (FWC) in relation to her dismissal by the respondent, Celotti Workforce Pty Ltd. Ms Claydon claimed that her dismissal was unfair and sought reinstatement and compensation. The case revolved around an incident at work where Ms Claydon was accused of using inappropriate language and engaging in conduct that the respondent considered to be serious misconduct. The Commission was required to determine whether Ms Claydon's actions constituted serious misconduct warranting dismissal, and if not, whether the dismissal was fair in all the circumstances, including considering procedural fairness.

The central legal issue before the Commission was whether Ms Claydon's actions met the threshold of serious misconduct. Additionally, the Commission had to assess whether the dismissal process complied with procedural fairness requirements, despite the conduct being substantiated. The Commission noted that while Ms Claydon's behaviour was inappropriate, it did not rise to the level of serious misconduct as defined by the relevant legislative provisions. The Commission also found that there were procedural deficiencies in the respondent's handling of the dismissal process, which affected the overall fairness of the dismissal.

After weighing the evidence and arguments presented by both parties, the Commission concluded that while Ms Claydon's conduct was inappropriate and substantiated, it did not meet the stringent standard of serious misconduct. The procedural deficiencies in the dismissal process were significant enough to render the dismissal unfair. Consequently, the Commission ruled in favour of Ms Claydon, ordering her reinstatement and awarding compensation for the period of unlawful dismissal. The decision underscores the importance of both the nature of the misconduct and the adherence to procedural fairness in employment termination processes.

Orders