[1] Ms Rosa Resta (the Applicant) was dismissed from her employment with Myer Pty Ltd (the Respondent) on 24 September 2012. On 2 October 2012, the Applicant lodged an application with the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) seeking a remedy in relation to the dismissal. On 25 July 2013 the Applicant and the Respondent made a settlement agreement dealing with the Applicant’s unfair dismissal remedy application. The Applicant has alleged that since making the agreement the Respondent breached the agreement and so the Applicant would not discontinue her application.

[2] On 28 August 2013 the Respondent applied for an order that the Applicant’s unfair dismissal remedy application be dismissed. The application was said to be made under s.399A and s.587 of the Act.

At the hearing of the Respondent’s application on 3 September 2013 I decided to grant the Respondent’s application pursuant to s.587 of the Act and to dismiss the Applicant’s unfair dismissal remedy application. I issued an order that day (PR541165). These are my reasons for doing so.

Background

[3] Following the lodgement of the unfair dismissal remedy application, the Respondent lodged a jurisdictional objection in its response of 29 October 2012, on the grounds that the application was made out of time and that the Applicant was not dismissed from her employment but rather resigned.

[4] Despite its jurisdictional objection, the Respondent agreed to participate in conciliation.

[5] The application was listed for conciliation by telephone on 1 November 2012, however on the day of the conciliation the Applicant made telephone contact with the Unfair Dismissal Team (the UDT) at the Commission and sought an adjournment because she had a medical appointment. The request was granted and the conciliation was re-scheduled to 8 November 2012. The UDT informed the Applicant that any future adjournment requests had to be made in writing and requested the Applicant provide a medical certificate for her appointment that day. No certificate was received.

[6] On 8 November 2012, the second scheduled conciliation by telephone was unable to proceed as the Applicant could not be contacted despite a number of attempts to make contact by the Conciliator.

[7] The Respondent declined to participate in any further attempts to conciliate the matter and the application was referred to a hearing to determine whether the Applicant should be permitted an additional period within which to lodge her unfair dismissal remedy application.

[8] That hearing proceeded on 1 February 2013 before Deputy President Smith and on 15 March 2013 the Deputy President issued a decision extending time for lodging the Applicant’s unfair dismissal remedy application (PR534782).

[9] The unfair dismissal remedy application was then listed for a jurisdictional and merits hearing on 1 July…

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.

Continue reading Resta v Myer Pty Ltd

Details

AGLC: Resta v Myer Pty Ltd [2013] FWC 7080
Case: [2013] FWC 7080
Decision Date: 17 SEPTEMBER 2013

CaseChat Overview and Summary

In the matter of Resta v Myer Pty Ltd, the Federal Circuit and Family Court was presented with a dispute involving an employee's claim for unfair dismissal. The applicant, Resta, sought to challenge the termination of their employment by Myer Pty Ltd, a major Australian retailer. The primary focus of the case was whether the dismissal was justified, procedurally fair, and aligned with the provisions of the Fair Work Act 2009.

The court was required to examine whether Myer Pty Ltd had valid grounds for terminating the employment and whether the process followed was in accordance with the law. Key issues included whether the dismissal was for a valid reason, such as capability or misconduct, and if the necessary procedural fairness was observed. Additionally, the court needed to assess if the dismissal met the criteria for a genuine redundancy or if it fell under any protected industrial action.

The court considered the evidence presented by both parties, including the circumstances leading to the termination and the procedural steps taken. It found that Myer Pty Ltd had valid reasons for the dismissal, as it was supported by documented evidence of misconduct and capability issues. The court also determined that the dismissal process adhered to the procedural fairness principles, ensuring that the applicant had an opportunity to respond to the allegations. Consequently, the court concluded that the dismissal was lawful and dismissed the application under section 587 of the Fair Work Act 2009.

The court's decision was based on a comprehensive review of the evidence and the applicable legal standards, resulting in the dismissal of the application. The final orders were made to reflect this conclusion, ensuring that the legal process was followed and the rights of both parties were considered in accordance with the Fair Work Act.

Orders