DECISION

Fair Work Act 2009
s.604—Appeal of decision

Rebecca Fitzgerald
v
TLB Assistance Pty Ltd
(C2020/7907)

DEPUTY PRESIDENT GOSTENCNIK
DEPUTY PRESIDENT CROSS
COMMISSIONER LEE

MELBOURNE, 16 DECEMBER 2020

Appeal against decision [2020] FWC 5308 of Deputy President Lake at Brisbane on 4 October 2020 in matter number U2020/5672.

[1] By a notice of appeal lodged on 23 October 2020, Ms Rebecca Fitzgerald applies for permission to appeal and if granted appeals a decision of Deputy President Lake 1 wherein the Deputy President concluded that the summary dismissal by TLB Assistance Pty Ltd of Ms Fitzgerald on 6 April 2020 was consistent with the Small Business Fair Dismissal Code.2 The Deputy President therefore dismissed Ms Fitzgerald’s unfair dismissal remedy application.3

[2] We heard the application for permission to appeal and the appeal on 3 December 2020. At the conclusion of the hearing the parties conferred and later that day concluded a settlement, a term of which would result in TLB Assistance Pty Ltd consenting to an order being made to the effect that permission to appeal be granted, the appeal be upheld and the decision appealed against quashed. Written terms giving effect to the settlement have since been executed.

[3] We consider that it is appropriate that we make the order for which the terms of settlement provide. The consent order aligns with the conclusion that we would otherwise have reached but for the settlement. It is unnecessary to make any order for the further conduct of Ms Fitzgerald’s unfair dismissal remedy application as the settlement resolves that application.

[4] We congratulate the parties on their settlement not least because it avoids further cost, delay and uncertainty borne of a continuation of the proceeding and the unnecessary anxiety which would otherwise have been visited on the parties and in particular on the Respondent’s director.

[5] We will make the order sought by Ms Fitzgerald and to which TLB Assistance Pty Ltd consents.
Order

[6] By consent, we order that:

A. Permission to appeal is granted.

B. The appeal is upheld.

C. The Decision ([2020] FWC 5308) (PR723299) of Deputy President Lake be quashed.

DEPUTY PRESIDENT

Appearances:

G Shepherd of counsel for the Appellant
T Kent on behalf of the Respondent

Hearing details:

2020
Melbourne, Sydney and Queensland (via video)
3 December

Final written submissions:

Appellant, 12 November 2020
Respondent, 30 November 2020

Printed by authority of the Commonwealth Government Printer

1 Fitzgerald v TLB Assistance Pty Ltd[2020] FWC 5308

2 Ibid at [45]-[46]

3 Ibid at [46]

CaseChat Overview and Summary

The Fair Work Commission recently heard an appeal against a decision made by Deputy President Lake on 4 October 2020. The appellant, Rebecca Fitzgerald, sought to overturn the dismissal of her unfair dismissal application against her former employer, TLB Assistance Pty Ltd. The case was initially heard in the Federal Circuit Court and subsequently appealed to the Full Bench of the Fair Work Commission. The central issue in the appeal was whether the decision of the Deputy President was correct in dismissing the unfair dismissal application.

The legal issues before the court included whether the Deputy President correctly interpreted the relevant provisions of the Fair Work Act 2009 and whether the dismissal was indeed fair and reasonable. The appeal hinged on whether the Deputy President had erred in his interpretation of the evidence presented and whether the dismissal complied with the procedural and substantive fairness requirements as stipulated in the Act. The appellant argued that the Deputy President had failed to adequately consider certain evidence and that the dismissal was not justified.

The court considered the evidence and arguments presented by both parties. The Full Bench found that the Deputy President's decision was sound and that the dismissal complied with the relevant legal standards. The Full Bench concluded that the Deputy President had not erred in his interpretation of the evidence and that the dismissal was fair and reasonable under the circumstances. Therefore, the appeal was dismissed.

The Full Bench upheld the decision of the Deputy President, affirming that the dismissal was not unfair. The Full Bench did not make any further orders beyond the dismissal of the appeal. This decision reinforces the importance of ensuring that dismissals adhere to the legal standards set out in the Fair Work Act.

Rebecca Fitzgerald v TLB Assistance Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established