DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natalie Ryan
v
Tempo Holidays Pty Ltd
(U2019/10818)

COMMISSIONER BISSETT

MELBOURNE, 14 JANUARY 2020

Application for an unfair dismissal remedy.

[1] On 24 September 2019, Ms Natalia Ryan made an application to the Fair Work Commission (Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act). Ms Ryan stated that she was notified of her termination by Tempo Holidays Pty Ltd (Tempo Holidays) on 19 September 2019.

[2] On 22 October 2019 the Commission attempted to contact Tempo Holidays to confirm an email address for service. A contact person from William Buck answered the call and advised that Tempo Holidays was under administration and that William Buck was the Administrator. They provided the Commissioner with a contact email address for Tempo Holidays and the Administrator.

[3] Later that day the Commission emailed correspondence to Tempo Holidays and the Administrator advising that Ms Ryan has made an unfair dismissal application and that the matter was listed for a conciliation conference. The Commission received a bounce back notification for Tempo Holiday’s email address.

[4] In reply to the Commission’s email the Administrator emailed correspondence to the Commission attaching a letter from Mr Laurie Fitzgerald (Joint and Several Administrator from William Buck) advising that Ms Ryan was terminated by the Administrators in accordance with the company’s insolvency and his appointment as Joint and Several Administrator. Mr Fitzgerald advised that the Administrators will not be in attendance nor be represented at any future conciliation in relation to the matter.

[5] On 23 October 2019, as the Administrator had advised they did not intend to attend or participate in the conciliation conference, the conference was cancelled and a notice advising of the cancellation was issued to the parties.

[6] On 29 October 2019 the Administrator emailed correspondence to the Commission advising that Tempo Holidays had entered into voluntary liquidation. The email correspondence attached a copy of a report to creditors dated 28 October 2019 and Australian Securities and Investments Commission (ASIC) Form 505 that noted Mr Fitzgerald from William Buck was appointed as Liquidator. This correspondence was forwarded to Ms Ryan’s nominated email address.

[7] The Commission performed a check on the ASIC insolvency notices database which showed that on 23 September 2019 the Tempo Holidays went into administration and William Buck was appointed as Administrator. A subsequent notice dated 29 October 2019 stated that the company had passed a special resolution to be wound up voluntarily and the Administrator became the Liquidator pursuant to s.446A of the Corporations Act 2001 (Corporations Act).

[8] On 30 October 2019 the Commission sent correspondence to Ms Ryan to her nominated email address and postal address advising that a resolution had been passed to voluntarily wind up the company and that a Liquidator had been appointed. The letter referred Ms Ryan to s.500(2) of the Corporations Act and stated it was the Commission’s preliminary view that her claim…

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 132
Decision Date: 14 JANUARY 2020

CaseChat Overview and Summary

In the case of Natalie Ryan versus Tempo Holidays Pty Ltd, the Fair Work Commission was presented with an application for remedy concerning an alleged unfair dismissal. Ms Ryan, a former employee of Tempo Holidays, sought redress for her dismissal, claiming it was unjust and without valid reason or process. Tempo Holidays, on the other hand, defended the dismissal as being within the bounds of lawful employment termination practices.

The principal legal issues before the Commission involved the interpretation and application of the unfair dismissal provisions under the Fair Work Act 2009. Specifically, the court had to determine whether the dismissal was procedurally fair, whether it was for a valid reason related to the employee's performance or conduct, and if the employer had genuinely considered alternatives to termination. Additionally, the court examined the proportionality of the dismissal in relation to the circumstances of the case.

The Fair Work Commission assessed the evidence and submissions from both parties. It considered the procedural fairness of the dismissal process, including whether Ms Ryan was given adequate notice and an opportunity to respond to the allegations against her. The Commission also evaluated the substantive reasons for the dismissal and the employer's efforts to mitigate the impact of the termination. Ultimately, the Commission found that the dismissal was unfair due to procedural deficiencies and a lack of genuine consideration of alternatives. Consequently, the Commission ordered the reinstatement of Ms Ryan to her former position and awarded compensation for the period of unlawful dismissal.

Orders