DECISION

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

Ms ZA
v
GDI Pty Ltd
(U2020/13167)

COMMISSIONER HUNT

BRISBANE, 3 JUNE 2021

Application for an unfair dismissal remedy – respondent failure to comply with s.590(2) order requiring person to attend – matter determined per s.600 in the absence of respondent – respondent’s conduct well short of that expected of employers – dismissal harsh, unjust and unreasonable – maximum compensation awarded.

[1] On 2 October 2020, Ms ZA (the Applicant) made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) to the Fair Work Commission (the Commission) alleging she had been dismissed from employment with GDI Pty Ltd (the Respondent / GDI) on 2 October 2020, and that the dismissal was harsh, unjust or unreasonable.

[2] Ms ZA is the sister of Mr Hikaru Okamoto, Director of GDI, and daughter of Mrs Keiko Okamoto. Mrs Okamoto is also known as Ms Keiko Sato and “Coco”. It is understood Mrs Okamoto is considered to be a shadow director and the effective controller of GDI. Mrs Okamoto’s husband incorporated GDI. Ms ZA does not share the last name of her family members.

Confidentially order

[3] I have made a confidentiality Order [PR730423] in respect of the Applicant and her partner. I consider it necessary to protect their identity in these proceedings because of the operation of the temporary protection order described at paragraph [47] below. Throughout this decision the individuals will be referred to as Ms ZA (or the Applicant) and Mr XY.

Background

Date of dismissal

[4] Ms ZA nominated the date of termination as 2 October 2020 in her initial Form F2 filed in the Commission. Ms ZA’s application included a letter from GDI of 4 September 2020 standing down her employment, produced in part below.

“NOTICE OF SUSPENSION

To:
[Ms ZA]

You are hereby suspended from duty, with immediate effect.

…..

We have decided to suspend your duty as an employee of GDI Pty Ltd whilst we investigate your suspected involvement with the conduct of its former director of GDI, [Mr XY]. Until further notice, please do not contact or have any dealings of any kind with [Mr XY].

…..

If you fail to comply with this direction, it will constitute a serious breach of your employment obligations to GDI Pty Ltd.

Hikaru Okamoto
Director
GDI Pty Ltd

4 September 2020”

[5] Ms ZA’s application included two letters composed by her and sent to GDI dated 22 September 2020 and 25 September 2020, reproduced in part below:

“22 September 2020

GDI Pty Ltd
[address]

Dear Mr Hikaru Okamoto,

…..

I received the Notice of Suspension on 6 September 2020.

…..

As requested, I will not contact or have dealings with [Mr XY] during my usual work hours.

…..

However, I note that I have not received my wages this month, payable on the 5th and 20^th of every month. I…

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.

Continue reading Ms Za v Gdi Pty Ltd

Details

AGLC: Ms Za v Gdi Pty Ltd [2021] FWC 3193
Case: [2021] FWC 3193
Decision Date: 3 JUNE 2021

CaseChat Overview and Summary

Ms Za brought an application against Gdi Pty Ltd for an unfair dismissal remedy. The primary issue was whether the dismissal was harsh, unjust, or unreasonable, and if so, what remedy should be granted. The matter was heard in the Fair Work Commission. The respondent did not comply with a s.590(2) order requiring attendance, resulting in the matter being determined under s.600 in the respondent’s absence.

The Commission had to decide whether the dismissal was unjust and whether the respondent’s failure to attend the hearing was justified. The Commission found that the dismissal was harsh, unjust, and unreasonable. Ms Za was employed as a casual worker and was dismissed without adequate explanation or warning. The respondent's conduct was found to be well below the standards expected of employers. The Commission noted that the respondent's failure to attend the hearing was not justified and had no bearing on the merits of the case.

Given the severity of the respondent's actions and the lack of justification for the dismissal, the Commission awarded maximum compensation to Ms Za. The Commission emphasised the importance of employers adhering to legal obligations and providing fair treatment to employees. The respondent's absence did not impact the decision, as the evidence presented clearly supported the unfair dismissal claim. The Fair Work Commission ordered Gdi Pty Ltd to pay Ms Za compensation for the unfair dismissal.

Orders