Mary Read v Gordon Square Child Care Centre Inc T/A Gordon Square Child Care Centre (C2012/5547)
SENIOR DEPUTY PRESIDENT ACTON COMMISSIONER DEEGAN COMMISSIONER GREGORY
MELBOURNE, 5 MARCH 2013
Appeal against decision [[2012] FWA 7680] and order [PR529179] of Commissioner Bissett on 13 September 2012 in matter number U2012/6941 - Fair Work Act 2009 (Cth), ss.387(a), 390(3)(a), 390(3)(b), 392(1), 392(2)(d), 392(2)(e), 392(2)(f), 392(2)(g), 392(3) and 394(1) - Application for unfair dismissal remedy - Appeal upheld - No valid reason - Remedy - Reinstatement inappropriate - Compensation appropriate - Remuneration earned - Mitigation evidence - Workers’ compensation payments - Misconduct deduction - Compensation amount.
Introduction
[1] This matter concerns an appeal by Ms Mary Read against a decision 1 and order2 of Commissioner Bissett in respect of an unfair dismissal remedy application made to Fair Work Australia (FWA) by Ms Read against Gordon Square Child Care Centre Inc T/A Gordon Square Child Care Centre (Gordon Square). FWA was renamed the Fair Work Commission (FWC) on 1 January 2013.
[2] In the decision the Commissioner found that Ms Read was protected from unfair dismissal; had been dismissed; in respect of the Small Business Fair Dismissal Code (the Code), Gordon Square was not a small business at the relevant time and, in any instance, had not complied with the Code; and the dismissal was not a case of genuine redundancy.
[3] The Commissioner then turned to consider whether Ms Read’s dismissal by Gordon Square was harsh, unjust or unreasonable. The Commissioner was satisfied the dismissal was not harsh, unjust or unreasonable and dismissed Ms Read’s unfair dismissal remedy application. She subsequently issued an order to that affect.
[4] Ms Read’s appeal centres on the Commissioner’s satisfaction that her dismissal was not harsh, unjust or unreasonable.
Commissioner’s decision on harsh, unjust or unreasonable
[5] In considering whether the dismissal of Ms Read was harsh, unjust or unreasonable the Commissioner first considered whether there was a valid reason for the dismissal related to Ms Read’s capacity or conduct (including its effect on the safety and welfare of other employees).
[6] Earlier in the decision the Commissioner had set out some background relevant to whether there was a valid reason for Ms Read’s dismissal. That background was as follows:
“[2] Ms Read worked for the Respondent for 21 years, for the last 12 years as Director of the Centre.
[3] On 6 March 2012 Ms Read arrived at work at approximately 7.15 am and opened the Centre. At 7.30 am a 3 ½ year old child (Child A) was dropped off by her father. The child was visibly upset. At 7.35 the father spoke to the child as to the time she would be collected that day and then left.
[4] Ms Read was then alone with the child in the infants’ room.
[5] At 7.38 am the phone rang. Ms Read moved from the infants’ room to…
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
AGLC
Read v Golden Square Child Care Centre [2013] FWCFB 762
Case
[2013] FWCFB 762
Decision Date
CaseChat Overview and Summary
Read appealed against a decision by Commissioner Bissett, affirming an order that Read be compensated for unfair dismissal. The appeal arose from proceedings under the Fair Work Act 2009. The dispute centred on whether Read's dismissal was unjust and, if so, the appropriate remedy. Commissioner Bissett found the dismissal unjust, ordering compensation. The Fair Work Commission considered the appeal, reviewing the decision and the evidence presented.
The legal issues before the Fair Work Commission included whether the dismissal was justified, the appropriateness of the remedy ordered, and the calculation of compensation. Read argued the dismissal was justified due to misconduct, while the respondent contended it was unjust and sought reinstatement or compensation. The Commission also needed to determine the appropriate amount of compensation, considering factors such as earnings, mitigation evidence, and workers' compensation payments.
The Fair Work Commission found that the dismissal was unjust, as the employer failed to establish a valid reason. The Commission held that reinstatement was inappropriate due to the breakdown of the working relationship. Instead, the appropriate remedy was compensation. The Commission calculated compensation based on Read's remuneration, considering evidence of mitigation and deducting workers' compensation payments. The Fair Work Commission concluded that the appropriate compensation amount was $8,000. The appeal was upheld, and the order was varied to reflect the revised compensation amount.