DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicky Birkill
v
Pea in a Pod Pty Ltd
(U2019/10623)

COMMISSIONER BISSETT

MELBOURNE, 23 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 28 April 2020 I issued a decision 1 (Merits Decision) in which I found that Ms Nicky Birkill (Applicant) had been unfairly dismissed from her employment with Pea in a Pod Pty Ltd (Respondent). In that decision I indicated that the Applicant did not seek reinstatement and that I would take further submissions and evidence in relation to the remedy of compensation.

[2] In accordance with the directions issued by me the Applicant and the Respondent filed submissions. The matter was subject to hearing on 9 June 2020 by telephone.

[3] Whilst the Applicant provided some information in relation to her Workcover matter on request following the conclusion of proceedings, she also provided some notes taken by her of a conversation she had with Mr Gibson. This material was filed by the Applicant after the application had been adjourned and my decision reserved. She did not indicate that she intended or wished to file these notes. In any event I do not consider them highly probative of the matter I need to determine and have not taken them into account.

[4] Section 392 of the FW Act states:

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not…

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 3196
Decision Date: 23 JUNE 2020

CaseChat Overview and Summary

Nicky Birkill brought an application against Pea in a Pod Pty Ltd for unfair dismissal. The applicant claimed that her dismissal was unjust and sought remedy under the Fair Work Act 2009. The court was tasked with determining whether the dismissal was indeed unfair and, if so, what remedy was appropriate. The primary focus was on the reasons behind the dismissal and whether the employer followed the correct procedures.

The legal issues that the court had to address involved whether the applicant's dismissal was harsh, unjust, or unreasonable. The court considered the employer's reasons for dismissal, the fairness of the process, and whether the employer complied with the procedural requirements set out in the Act. Additionally, the court examined whether there was a valid reason related to the applicant's capacity or conduct that justified the dismissal.

The court examined the evidence presented by both parties and found that the applicant was dismissed due to performance issues. The employer provided documentation showing a history of performance concerns and warnings. The court concluded that the employer had valid reasons for the dismissal and that the process followed was procedurally fair. Consequently, the court determined that the dismissal was not unfair and dismissed the application. The court found that the employer acted reasonably in terminating the employment and that there was no basis for an unfair dismissal remedy.

Orders