Rachel Edwards v Eastern Guruma Pty Ltd - [2024] FWC 569

[2024] FWC 569

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Rachel Edwards
v

Eastern Guruma Pty Ltd

(U2023/10570)

DEPUTY PRESIDENT O’KEEFFE

PERTH, 1 MARCH 2024

Application for an unfair dismissal remedy - Applicant unfairly dismissed – compensation awarded.

On 26 October 2023, Ms Rachel Edwards (the Applicant) made an application to the Fair Work Commission (the FWC) under s.394 of the Fair Work Act 2009 (Cth) (the FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Eastern Guruma Pty Ltd (the Respondent).

Background

The Applicant was engaged by the Respondent as a Site Administrator, with her employment commencing on 25 August 2020. In July 2023 the Respondent commenced a process of investigating the Applicant as it had formed the view that at certain times she may have claimed and been paid an allowance to which she was not entitled. As a result of this investigation the Applicant was stood down with pay and investigations were undertaken. From this investigation the Respondent formed the view that on twelve occasions the Applicant had claimed and been paid an allowance to which she was not entitled and the Respondent proceeded to terminate the Applicant’s employment.

Permission to appear

Both the Applicant and the Respondent sought to be represented before the Commission and neither party objected to the other being represented. In addressing s596(2)(b) the Applicant noted in her submissions that she was an Administration Officer with no litigation experience and as such would experience some difficulties in representing herself effectively. I accepted that this was the case. In addressing s596(2)(a) the Respondent noted in its submissions that the matter involved significant factual disputes and submitted that the hearing would be conducted more efficiently with experienced counsel. I agreed with this submission and I therefore decided to exercise my discretion to grant permission for the both parties to be represented.

Witnesses

The Applicant gave evidence on her own behalf.

The following witnesses gave evidence on behalf of the Respondent:

· Mr Joseph Autridge (Mr Autridge), Talent Acquisition Specialist and Human Resources Officer for the Respondent; and
· Mr Shane Stephens (Mr Stephens), Deputy Operations Manager for the Respondent

Has the Applicant been dismissed?

A threshold issue to determine is whether the Applicant has been dismissed from their employment.

Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

There was no dispute and I find that the Applicant was an employee of the Respondent and her employment was terminated at the initiative of the Respondent.

I am therefore…

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: [2024] FWC 569
Decision Date: 1 MARCH 2024

CaseChat Overview and Summary

Rachel Edwards brought an application before the Fair Work Commission (FWC) alleging that she was unfairly dismissed from her employment with Eastern Guruma Pty Ltd. The Applicant alleged that the dismissal was unreasonable because she had not been given a valid reason for her dismissal and that she was following processes both advised and condoned by her managers. The Respondent argued that there was a valid reason for dismissal related to the Applicant’s conduct, as she had knowingly submitted inaccurate timesheets for payment of an allowance she was not entitled to. The Applicant further submitted that she was not given an opportunity to respond to the allegations against her. The FWC found that the dismissal was unreasonable because the Applicant was following processes both advised and condoned by her managers to herself and all other employees in situations where the Respondent’s policy on the matter did not comprehensively deal with the issue, was unclear, and applied in an inconsistent manner. Termination for breaching a policy that finds itself in such a state cannot be a fair outcome. The FWC found that the dismissal was unreasonable and ordered compensation of $40,528.09.

Orders