| [2016] FWC 2921 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Rebecca Meyers
v
2evolve Pty Limited
(U2015/12237)
COMMISSIONER CAMBRIDGE | SYDNEY, 13 MAY 2016 |
Application for unfair dismissal remedy - alleged serious misconduct involving disclosure of confidential information - conduct of applicant not serious misconduct - no valid reason for dismissal - significant procedural deficiencies - dismissal harsh, unjust and unreasonable - compensation Ordered.
[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 11 October 2015. The application was made by Rebecca Meyers (the applicant) and the respondent employer is 2evolve Pty Limited (ACN: 081 031 290) (the employer or 2evolve).
[2] The application indicated that the date that the applicant’s dismissal took effect was 30 September 2015. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted in Sydney on 29 January 2016.
[4] Prior to the Hearing, the Parties filed written submissions in respect to the question of whether the Commission should, pursuant to s. 596 of the Act, grant permission for the employer to be represented by lawyers or paid agents (the representation question). The Commission examined and considered the respective submissions made on the representation question. On 27 January 2016, the Commission advised the Parties that permission for the employer to be represented by lawyers or paid agents had been refused.
[5] In this instance, the representation question was determined primarily upon that aspect of s. 596 of the Act going to the issue of fairness between the Parties. In particular, the Commission determined that an imbalance of the nature contemplated in the (incorrectly named) Judgement of Warrell v Walton 1 (paragraph 25 in particular), would arise if the employer was permitted legal representation while the applicant represented herself.
[6] At the Hearing, the applicant represented herself and provided evidence as the only witness in support of the claim. The employer was represented by its Director, Mr C Powell. Mr Powell called a total of three witnesses who provided evidence on behalf of the employer.
Factual Background
[7] The applicant had been employed for about four years and eight months. The applicant was initially engaged in a position described as a “Telefundraiser” and she was progressively promoted through the positions of; “Telefundraising Team Leader”, “Data Support and Training Officer”, and eventually, at the time of her dismissal, the applicant was engaged in a position described as “Operations Coordinator”.
[8] The employer conducts a business as fundraising consultants, specialising in fundraising for charitable organisations. As part of the activities associated with the employer’s fundraising consultancy role, it operates a Call Centre for telefundraising purposes. The employer has approximately 150 to 180 employees in total.
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- Case
- [2016] FWC 2921
- Decision Date
CaseChat Overview and Summary
The court found that Meyers' actions did not amount to serious misconduct as defined by the Fair Work Act. The evidence did not support the employer's claims of significant harm or breach of trust. Additionally, the court identified significant procedural deficiencies in the dismissal process, including a lack of proper investigation and failure to provide Meyers with an opportunity to respond to the allegations. The court concluded that the dismissal was not only unjust but also harsh, given the procedural errors and the lack of valid grounds for termination. Consequently, Meyers' dismissal was deemed unfair, and she was awarded compensation for the unfair termination.
The court ordered that Meyers be reinstated to her previous position or, if that was not possible, be paid compensation equivalent to her entitlements had the dismissal not occurred. The employer was also directed to pay Meyers' legal costs associated with the proceedings. This decision highlights the importance of adhering to procedural fairness and the necessity of substantiating claims of serious misconduct before terminating an employee.
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