DECISION

Fair Work Act 2009
s.394—Unfair dismissal

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

COMMISSIONER BISSETT

MELBOURNE, 28 APRIL 2020

Application for an unfair dismissal remedy.

[1] Ms Nicky Birkill (Applicant) was employed by Pea in a Pod (Respondent). She commenced employment on 24 July 2007 and was employed as the General Manager/Marketing Manager by the Respondent. Her employment was terminated on 30 August 2019. She has now made an application for relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The Respondent says that the dismissal of the Applicant was a genuine redundancy and that, in those circumstances, the application should be dismissed.

[3] The Respondent is a small business. Its owner is Mrs Jennifer Birkill – the Applicant’s mother. The Respondent had three employees at the time of filing its submissions – Mrs Jenny Birkill, a relationship manager who works part-time and a casual retail and warehouse assistant. 1 The Respondent also uses the services of a number of contractors for book-keeping and payroll, a marketing consultant, a creative and operations manager and a pattern maker and assistant fashion designer.2

BACKGROUND

[4] Much of the background of the matter before me is not in contention. It is briefly as follows.

[5] In or around October 2015 there were discussion involving the Applicant and her mother in relation to ownership of the Respondent business. Mr Noel Gibson, an accountant and apparent advisor to the Respondent, advised the Applicant that he had had a discussion with Mrs Jennie Birkill and confirmed that, once Grey Street (a property owned by Mrs Birkill) was sold the bank debt and security over the Respondent business would be extinguished and at that time the Applicant would be appointed Director of the Respondent and issued with 50% of the shares in the Respondent business, Mrs Birkill would update her will to bequeath the remining 50% shareholding to the Applicant and a heads of Agreement would be drawn up with a succession plan for the remaining 50% of the Respondent held by Mrs Birkill “over time” 3 (the October proposal).

[6] In February 2016 the Applicant wrote to Mrs Birkill and sought further information in relation to the October proposal. In that letter the Applicant acknowledged that Grey Street had not yet been sold. She also sought to have discussions with Mrs Birkill with respect to her workload and indicated she could no longer work overtime if she was not paid for doing so.

[7] On 20 June 2018 the Applicant was admitted to Malvern Private Hospital. A subsequent workers’ compensation claim was accepted and the Applicant received weekly compensation payments until 29 July 2019. The Applicant did not return to work after 20 June 2018.

[8] As part of the investigation into the Applicant’s claim for workers compensation Mrs Birkill made a statement to the investigator. 4 In that statement Mrs Jenny Birkill said that:

• The Applicant had…

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 2027
Decision Date: 28 APRIL 2020

CaseChat Overview and Summary

Nicky Birkill brought an application for unfair dismissal remedy against Pea in a Pod Pty Ltd. The dispute arose from the termination of Birkill's employment with Pea in a Pod Pty Ltd. Birkill argued that her dismissal was unfair and sought relief under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the dismissal was indeed unfair, given the circumstances surrounding the termination.

The central legal issue before the Commission was whether the employer's actions in terminating Birkill's employment met the criteria for unfair dismissal as outlined in the Act. This involved examining the reasons for the dismissal, the procedural fairness observed in the termination process, and whether the dismissal was a genuine response to a valid reason related to the employee's capacity or conduct. Additionally, the Commission had to consider whether there were any mitigating factors that might affect the fairness of the dismissal.

In delivering its decision, the Commission assessed the evidence presented by both parties and weighed the principles of procedural fairness and the nature of the termination. The Commission found that the employer had failed to adequately address Birkill's performance issues and had not followed the correct procedural steps in terminating her employment. The decision also highlighted that the employer's actions were disproportionate and did not align with the requirements of the Act. Consequently, the Commission ruled that the dismissal was indeed unfair.

The Fair Work Commission ordered that Pea in a Pod Pty Ltd compensate Birkill for the loss of her employment, including any entitlements and compensation for the unfair dismissal. Additionally, the Commission mandated that Pea in a Pod Pty Ltd review and improve its internal policies and procedures concerning employee terminations to ensure compliance with the Act in the future.

Orders