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.

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: [2016] FWC 2921
Decision Date: 13 May 2016

CaseChat Overview and Summary

Rebecca Meyers, an employee, brought an unfair dismissal claim against her former employer, 2evolve Pty Limited, before the Fair Work Commission. Meyers alleged that she was dismissed due to serious misconduct involving the disclosure of confidential information. The employer argued that Meyers' conduct warranted dismissal and that her termination was handled according to company policy. The central legal issues before the court were whether Meyers' conduct constituted serious misconduct justifying dismissal and whether the dismissal process was fair and lawful. The court examined the definition of serious misconduct and the procedural fairness of the dismissal process, including the employer's adherence to its own policies.

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.

Orders