DECISION

Fair Work Act 2009
Section 604 - Appeal of decisions

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

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 16 NOVEMBER 2017

Unfair dismissal found - application for stay of compensation order pending appeal – grounds of appeal assert misapplication of evidence – principles applicable to stay applications – arguable case – balance of convenience – stay granted

[1] This decision concerns an application by an employer Needlework Tours Pty Ltd (Needlework) for a stay of an order of the Fair Work Commission pending the hearing and determination of Needlework’s appeal.

[2] The order sought to be stayed is an order made by Commissioner Ryan on 17 October 2017. In his order the Commissioner ordered pursuant to section 392(1) of the Fair Work Act 2009 (the FW Act) that Needlework pay Amanda Olesen “the amount of $12,550 gross, to be taxed at the appropriate rate, as compensation in lieu of reinstatement. The amount is to be paid within 21 days of the order. This order is effective on and from 17 October 2017.”

[3] 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. The Commissioner heard the matter on 13 September 2017, at the conclusion of which he reserved his decision. His decision of 17 October found that:

• the dismissal was not consistent with the Small Business Fair Dismissal Code;

• there was no valid reason for dismissal having regard to the capacity or conduct of Ms Olesen;

• Ms Olesen was given no opportunity to respond to any concerns Needlework had concerning her employment;

• the dismissal was harsh, unjust and unreasonable.

[4] 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 is 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;

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

[5] Needlework’s appeal is made under section 604 of the FW Act. It is listed for hearing and determination by a full bench of the Commission on 1 December 2017. It is to be noted that an appeal can only be considered if the full bench is minded at that time to grant permission to appeal.

[6] Without limiting the circumstances in which permission of…

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] FWC 6022
Decision Date: 16 NOVEMBER 2017

CaseChat Overview and Summary

The case involved a claim by Needlework Tours Pty Ltd against Ms Amanda Olesen, the former employee, for unfair dismissal. The dispute was heard and determined by the Fair Work Commission (FWC). Ms Olesen, who had been employed as a sales consultant, alleged that she was dismissed without just cause or excuse. The company, on the other hand, argued that the dismissal was justified due to serious misconduct.

The legal issues before the FWC were whether the dismissal was unfair and, if so, the appropriate remedy. The central issue revolved around the interpretation of the evidence presented by both parties regarding the circumstances of the dismissal. The FWC had to determine whether the company's decision to terminate Ms Olesen's employment was justified and whether the dismissal process complied with the relevant provisions of the Fair Work Act.

In considering the application for a stay of the compensation order pending appeal, the FWC applied the principles established in relevant case law. The court found that Ms Olesen had established an arguable case on the appeal, as the grounds of appeal related to the misapplication of evidence. Additionally, the balance of convenience favoured granting the stay, as the potential prejudice to the company outweighed the prejudice to Ms Olesen if the stay was not granted. Consequently, the FWC decided to grant the stay.

The final orders of the FWC included the grant of a stay of the compensation order pending the outcome of the appeal, with specific conditions to protect the interests of both parties during the appeal process. The company was required to provide security for the compensation amount, and Ms Olesen was allowed to apply for interim payments if necessary.

Orders