| [2021] FWC 6318 |
| FAIR WORK COMMISSION |
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…
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- Case
- [2021] FWC 6318
- Decision Date
CaseChat Overview and Summary
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.
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Background
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