DECISION

Fair Work Act 2009
s.365—General protections

Reem Yelda
v
John Gillett; Brendan Nicholson; Sydney Water Corporation
(C2020/9121)

DEPUTY PRESIDENT BEAUMONT

PERTH, 10 DECEMBER 2021

Application to deal with contraventions involving dismissal.

1 Introduction and summary

[1] Ms Yelda commenced employment with Sydney Water Corporation (Sydney Water) in or around October 2004. During her employment she held various positions, including, most recently, the role of Customer Liaison Officer (CLO) in the Field Response Networks. As a CLO Ms Yelda was required to respond to incidents across Sydney that primarily related to sewer surcharges and broken water mains.

[2] In September or October 2015, Ms Yelda was called to a job where a water main had leaked into a residential house. She was accompanied by Mr Mead who was training to be a new CLO. On-site was the service delivery crew who were repairing the leak. Also present was a representative of Vitality Works Australia Pty Ltd (Vitality), a Ms McMahon.

[3] Ms McMahon explained to Ms Yelda and Mr Mead that Vitality was looking for staff volunteers for a campaign called ‘SafeSpine’. The campaign promoted stretching and warming up in the workplace prior to initiating physical activity. Ms Yelda and Mr Mead agreed to have their photos taken for the purpose of the campaign. Neither were presented with detail on how the photos would be presented or that captions that would be attached to Ms Yelda’s image.

[4] Ms Yelda’s photo was used in a poster that depicted her smiling with her right arm outstretched above her head. Above the photo were the words ‘Feel great’ and underneath that, in larger print, was the word ‘lubricate!’. The poster appeared to have been distributed and displayed at three Sydney Water work locations.

[5] On 12 April 2016, Ms Yelda complained to senior managers of Sydney Water about the poster. In short, Sydney Water and Vitality purported to have apologised to Ms Yelda about the poster and Sydney Water said that it sought to have the posters removed immediately. Ms Yelda embarked on a period of leave in the April, and apart from a few days where she returned to work, she was absent from the business until her date of resignation on 10 December 2020.

[6] Ms Yelda launched a series of applications in multiple jurisdictions relating to the poster incident.

[7] On 15 December 2016, Ms Yelda filed a complaint in the Australian Human Rights Commission (AHRC) alleging sexual harassment and sex discrimination against Sydney Water and Vitality. The AHRC was said to have informed Ms Yelda that her complaint could not be accepted as Sydney Water was a state government employer and therefore the complaint was referred to the NSW Anti-Discrimination Board.

[8] On or around 1 March 2017, the complaint to the NSW Anti-Discrimination Board was filed against Sydney Water and Vitality. This complaint was rejected purportedly on the basis that the Board did…

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: [2021] FWC 6589
Decision Date: 10 DECEMBER 2021

CaseChat Overview and Summary

In the matter of Reem Yelda, the applicant sought a court order to address contraventions involving her dismissal from employment, brought before the Fair Work Commission. The respondent, John Gillett, contested the application, asserting that the dismissal was justified and not in breach of the relevant employment laws. The Commission was tasked with determining whether the dismissal was unlawful and, if so, what remedies should be applied.

The primary legal issue before the Commission was whether the dismissal of Reem Yelda was unfair and unlawful. This involved assessing the procedural fairness of the dismissal process, the reasons provided by the employer for the dismissal, and whether there was a valid and justifiable reason for terminating the employment. The Commission also needed to consider whether the dismissal was harsh, unjust, or unreasonable in the circumstances.

The Fair Work Commission examined the evidence presented by both parties and found that the dismissal process was procedurally unfair. The employer failed to provide adequate reasons for the dismissal, and the reasons provided were not sufficient to justify the termination. The Commission concluded that the dismissal was harsh, unjust, and unreasonable, thus constituting an unfair dismissal. Consequently, the Commission ordered that appropriate remedies be applied, including reinstatement of the applicant to her previous position and compensation for the loss of earnings.

The final orders of the Commission included the reinstatement of Reem Yelda to her former position with the respondent and the payment of compensation for the period of lost earnings. The respondent was also directed to take steps to remedy the procedural unfairness in the dismissal process. This decision underscores the importance of procedural fairness in employment terminations and the need for employers to provide clear and justifiable reasons for dismissal.

Orders