Petra Molokac v Evolving Support Services Pty Ltd - [2024] FWC 1538

[2024] FWC 1538

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Petra Molokac
v

Evolving Support Services Pty Ltd

(U2024/3071)

COMMISSIONER SIMPSON

BRISBANE, 14 JUNE 2024

Application for an unfair dismissal remedy – Applicant dismissed for Serious Misconduct – Dismissal Unfair – Compensation Awarded.

On 18 March 2024, Ms Petra Molokac (Ms Molokac / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, alleging she was unfairly dismissed from her employment with Evolving Support Services Pty Ltd (the Respondent).

I listed the matter for a directions hearing on 17 April 2024. The matter was listed for hearing on 29 May 2024.

Ms Molokac appeared at the hearing represented by Shane Glassby. The Respondent was represented by its Director, Ms Letia Donnelly. At the commencement of the hearing the parties consented to it being conducted as a determinative conference. Ms Donnelly was asked if she wished to challenge what was said in the statements provided by Carolyn Bilby,[1] Kasane Bilby,[2] Elizabeth Considine,[3] Melissa Johnson[4] and Kornelia Wood.[5]

These statements were primarily in the form of character references. Kornelia Wood gave evidence that Ms Molokac retrieved items from the property of the Respondent that belonged to Ms Molokac including place mats, and any documents she may have taken were Ms Molokac’s own documents. Ms Donnelly said she did not see the statements as relevant and did not wish to cross examine any of those persons. I advised I would allow the statements to be taken into account as they were.

The parties both agreed only Ms Molokac and Ms Donnelly were required to give evidence and they both were sworn in and gave evidence concurrently. The Applicant relied on the content from her Form F2 Application setting out a chronology of events,[6] and its attachment, documentary evidence, written submissions and oral submissions and evidence. Ms Molokac also relied on material filed in response to the Respondent’s material at page 128 to 134 of the Court Book,[7] and responses to the Respondent’s Form F3 at pages 40 to 43 of the Court Book.[8]

The Respondent relied on its Form F3 Response,[9] documentary evidence, written submissions and oral submissions and evidence. Ms Donnelly also provided a chronology of events at page 101 and 102 of the Court Book.[10]

The Applicant was dismissed from her employment on the Respondent’s initiative on 15 March 2024. The Application was filed on 18 March 2024, within 21 days of dismissal. The Respondent’s Form F3 stated that it had 75 employees at the time of termination and is therefore not a small business. There are no jurisdictional issues to consider.

Relevant legislation

Section 385 of the Act states:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

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.

Continue reading Petra Molokac v Evolving Support Services Pty Ltd

Details

AGLC: Petra Molokac v Evolving Support Services Pty Ltd [2024] FWC 1538
Case: [2024] FWC 1538
Decision Date: 14 JUNE 2024

CaseChat Overview and Summary

Petra Molokac applied to the Fair Work Commission for a remedy for an unfair dismissal, alleging she was unfairly dismissed from her employment with Evolving Support Services Pty Ltd. The dismissal was based on serious misconduct, specifically, entering the property of the Respondent without consent and removing items from the property. Ms Molokac denied the allegations of misconduct and asserted that she was dismissed without notice or an opportunity to respond. The primary issue for the Commission to decide was whether Ms Molokac’s dismissal was harsh, unjust, or unreasonable. The Commission found that the dismissal was harsh, unjust, and unreasonable as the Respondent did not have a valid reason to dismiss Ms Molokac and did not provide her with an opportunity to respond to the allegations against her. The Commission concluded that the dismissal was not justified by the evidence and the process followed by the Respondent was procedurally flawed. The Commission awarded Ms Molokac compensation in the amount of $14,400, which was reduced by the amount she earned in a new employment arrangement following her dismissal. The Respondent was ordered to pay the compensation amount to Ms Molokac within 21 days of the date of the decision.

Orders