DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Rachel Titley
v
Schools Ministry Group
(U2019/2605)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 16 OCTOBER 2019

Application for an unfair dismissal remedy – pastoral care worker – failure to secure required qualification – inherent requirements of job – whether personal factors mitigated breaches – valid reason – procedural fairness – whether fair go all round – relevance of post dismissal conduct – dismissal not harsh, unjust or unreasonable – application dismissed

[1] On 8 March 2019 Ms Rachel Titley (Ms Titley or the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to her dismissal by the Schools Ministry Group Incorporated (SMG, the Respondent or the employer). She claims to have been unfairly dismissed on 15 February 2019.

[2] At the date of dismissal Ms Titley was employed by SMG as a casual Pastoral Care Worker in a placement at the Murray Bridge South Primary School in regional South Australia. Pastoral Care Workers were formerly known as school chaplains.

[3] Ms Titley claims that her dismissal was harsh, unjust or unreasonable. Her application seeks an order for reinstatement or compensation. In her closing submission at the hearing of the matter she no longer pursued an order for reinstatement but actively pursued an order for compensation.

[4] SMG oppose the application. It says that it terminated Ms Titley’s employment on the ground that she had failed to secure necessary qualifications to enable her to continue in the role of a Pastoral Care Worker. It says that notwithstanding Ms Titley being a casual employee, the employer elected to pay her two weeks’ pay upon termination. SMG contend that the dismissal was not harsh, unjust or unreasonable, and that no issue of remedy arises.

[5] No jurisdictional issues arise in determining this matter. Ms Titley was a person protected from unfair dismissal within the meaning of section 382 of the FW Act. She served the statutorily required minimum employment period (section 382(2)(a)). Though she was a casual employee, her service was on a “regular and systematic” basis within the meaning of section 384(2)(a) of the FW Act. Her annual rate of earnings did not exceed the high-income threshold (section 382(2)(b)(iii)). Her employer was a “national system employer” within the meaning of section 14 of the FW Act. Her application was filed within the statutorily required 21 days after dismissal took effect.

[6] On 9 April 2019 conciliation of the application was conducted by a Commission-appointed conciliator. It did not settle. It was referred to Commissioner Platt for hearing and determination. Directions were issued on 13 and 27 May 2019.

[7] On 21 June 2019 on the application of Ms Titley, the Commissioner recused himself. Hearing dates of 24, 25 and 26 June 2019 were vacated. The matter was re-allocated to me. I set the matter down for…

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 Rachel Titley v Schools Ministry Group

Details

AGLC: Rachel Titley v Schools Ministry Group [2019] FWC 7081
Case: [2019] FWC 7081
Decision Date: 16 OCTOBER 2019

CaseChat Overview and Summary

The case before the Fair Work Commission involved a pastoral care worker, Rachel Titley, who applied for an unfair dismissal remedy against the Schools Ministry Group. The crux of the dispute was Titley's failure to secure the required qualification for her role within the stipulated timeframe. The Commission was tasked with determining whether her dismissal was justified, considering various mitigating factors and procedural fairness. Additionally, the case examined the relevance of Titley's conduct following the dismissal and whether her termination was ultimately harsh, unjust, or unreasonable.

The primary legal issues before the Commission were whether Titley's personal circumstances sufficiently mitigated her failure to meet the job's inherent requirements and whether procedural fairness was observed during the dismissal process. Furthermore, the Commission had to assess if the overall outcome was fair, particularly in light of Titley's post-dismissal conduct. The Commission also needed to determine if the dismissal was justified under the applicable laws and whether it was a proportionate response to the breach.

In its reasoning, the Commission noted that Titley's personal circumstances, while sympathetic, did not sufficiently mitigate her failure to secure the required qualification within the timeframe set by her employer. The Commission found that the employer had acted within its rights to dismiss Titley for not meeting the inherent requirements of her job. Additionally, the Commission held that the employer had observed procedural fairness in the dismissal process. The post-dismissal conduct of Titley was deemed irrelevant to the fairness of the dismissal itself. Consequently, the Commission concluded that the dismissal was not harsh, unjust, or unreasonable, and dismissed Titley's application for unfair dismissal remedy.

Orders