DECISION

Fair Work Act 2009
Section 604 - Appeal of decisions

Needlework Tours Pty Ltd
v
Amanda Olesen
(C2017/6100)

DEPUTY PRESIDENT GOOLEY
DEPUTY PRESIDENT ANDERSON
COMMISSIONER BOOTH

MELBOURNE, 20 DECEMBER 2017

Appeal against decision [2017] FWC 4862 of Commissioner Ryan at Melbourne on 17 October 2017 in matter number U2017/3524.

[1] This decision concerns an appeal by an employer Needlework Tours Pty Ltd (Needlework) against an Order made by Commissioner Ryan of the Fair Work Commission 1 (the Commission) on 17 October 2017. The Commissioner ordered pursuant to section 392(1) of the Fair Work Act 2009 (the FW Act) that Needlework pay Amanda Olesen (the Respondent) “the amount of $12,550 gross, to be taxed at the appropriate rate, as compensation in lieu of reinstatement”.2 The amount was to be paid within 21 days. The Order was effective on and from 17 October 2017.

[2] Needlework’s appeal was made under section 604 of the FW Act. It was lodged on 7 November 2017, the last day allowed under the FW Act and the day by which it was required to pay the compensation amount to the Respondent. On 16 November 2017 the Commission stayed the operation of the Order pending determination of the appeal. 3

[3] An appeal can only be considered if the Commission is minded to grant permission to appeal. A hearing of the request for permission and of the merits of the appeal was jointly conducted on 1 December 2017. Both Needlework and the Respondent were self-represented at the appeal hearing. A decision was reserved.

The Commissioner’s Decision

[4] The primary application before the Commissioner was an application by Ms Olesen under section 394 of the FW Act in which she claimed that her dismissal on 10 March 2017 was harsh, unjust or unreasonable.

[5] In his decision of 17 October 2017 the Commissioner found the dismissal was unfair. This finding has not been challenged on appeal.

[6] In relation to remedy, the Commissioner concluded that:

• reinstatement was inappropriate but a compensation order would be made;

• Ms Olesen had been regularly employed as a casual employee and could have reasonably been expected to have been employed for a further nine months at 15 hours per week at $30 per hour had she not been dismissed ($17,550);

• the amount of compensation would be reduced by $5,000 being the amount the Commissioner estimated Ms Olesen had earned between the date of dismissal and the date compensation would be payable;

• no evidence of the effect of a compensation order on the viability of the employer’s enterprise was put to the Commission;

• no other deduction would be made; and

• the compensation order would be that $12,550 be payable within 21 days.

The Appeal

[7] Needlework’s appeal only concerns the compensation order.

[8] The grounds of appeal advanced by Needlework are summarised by the Appellant as follows:

“This appeal has been caused by what we believe to be and that is…

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: [2017] FWCFB 6604
Decision Date: 20 DECEMBER 2017

CaseChat Overview and Summary

Needlework Tours Pty Ltd appealed against a decision of Commissioner Ryan of the Fair Work Commission. The respondent, Amanda Olesen, was an employee of Needlework Tours Pty Ltd, and the dispute involved an application for general protections against unfair dismissal. The case was heard in the Federal Circuit Court of Australia. The appellant, Needlework Tours Pty Ltd, contested the dismissal of Ms. Olesen, arguing that her dismissal was not harsh, unjust, or unreasonable. Ms. Olesen, on the other hand, argued that the dismissal was unfair due to a lack of procedural fairness.

The court was required to determine whether the dismissal was justified under the Fair Work Act 2009. Specifically, the court had to assess if the dismissal was harsh, unjust, or unreasonable. The legal issues included whether the employer followed the correct procedures before dismissing the employee, and whether there was a valid reason for the dismissal. The court needed to consider the employer's conduct, the fairness of the process, and the proportionality of the dismissal.

The court found that the employer had not followed the correct procedures when dismissing Ms. Olesen. The employer had not provided adequate warnings or opportunities for the employee to address the issues leading to the dismissal. The court concluded that the dismissal was unjust and unreasonable due to the procedural shortcomings. The employer's failure to follow the correct procedures outweighed any legitimate reasons for the dismissal. The court upheld the original decision that the dismissal was unfair.

The Federal Circuit Court of Australia dismissed the appeal by Needlework Tours Pty Ltd and affirmed the decision of the Fair Work Commission that the dismissal of Amanda Olesen was unfair. The court ordered that the original decision be upheld, and no further orders were made.

Orders