DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rhianah Wilson
v
Workpower Incorporated
(U2021/936)

DEPUTY PRESIDENT BEAUMONT

PERTH, 18 JUNE 2021

Application for an unfair dismissal remedy.

1 Introduction

[1] This decision concerns an application made by Ms Rhianah Wilson (the Applicant) under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy.

[2] The Applicant was a Community Support Officer (CSO) with Workpower Incorporated (the Respondent). In her role, she was required to work with people with a disability to assist them in their recreational activities. Over the course of early January 2021, the Applicant was involved in three incidents involving the care of two clients.

[3] On 5 January 2021, the Applicant took Client A on an excursion. It was said to have been a hot day, and while Client A was returned to her home with severe sunburn, the Applicant did not report the incident to the Respondent. However, the parent of Client A did report the incident to the Respondent, having been distressed by the sight of her daughter. Client A’s parent requested a full investigation into the incident. As the Respondent formed the view that the allegations about the sunburn amounted to neglect, the incident was subsequently reported to the NDIS Quality and Safeguards Commission.

[4] On 9 January 2021, the Respondent received a complaint from Rocky Bay, an accommodation facility. The complaint concerned the support that had been provided to their resident, Client B, over the course of 6 and 7 January 2021. While acknowledging that Client B had enjoyed the excursions over the course of the two days, the Team Leader of Rocky Bay, said she felt that the weather had been too hot for the outdoor excursions, and when Client B returned home on 6 January 2021, she had experienced two seizures, which could have been brought on by heat exposure.

[5] The Applicant was provided with details of the allegations against her. They were, neglecting to fulfil her duty of care responsibilities as a CSO, resulting in physical harm to Client A, distress for Client B, and distress for Client A’s family.

[6] Having considered the evidence, I am of the view that the Applicant’s actions in respect of the first incident, amounted to a breach of the Respondent’s Climatic Heat and Inclement Weather Policy (Climatic Heat Policy), Child Protection and Vulnerable Adults Policy (VAP) and Code of Conduct. Further, in all of the circumstances, the Applicant failed to exercise due care and diligence and did not comply with lawful and reasonable instructions. Regarding the second and third incidents over 6 and 7 January 2021, the Applicant again demonstrated a failure to exercise due care and diligence and comply with lawful and reasonable instructions.

[7] In short, I have concluded that the dismissal of the Applicant by the Respondent was not harsh, unjust or unreasonable, and therefore the application is dismissed.…

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 3141
Decision Date: 18 JUNE 2021

CaseChat Overview and Summary

In the matter of Rhianah Wilson versus Workpower Incorporated, the Federal Circuit Court was called upon to consider an application for remedy in relation to an unfair dismissal. Ms Wilson, the applicant, sought redress for her termination of employment by Workpower, the respondent. The crux of the dispute centred around the validity and fairness of the termination process, with Ms Wilson asserting that the dismissal was unjust and contrary to the provisions of the Fair Work Act 2009.

The legal issues at hand required the court to scrutinise whether the dismissal was conducted in accordance with the procedural fairness and the substantive fairness as outlined in the Act. Specifically, the court had to determine if Ms Wilson's dismissal was for a valid reason, and if the process leading to the termination adhered to the requisite procedural steps. Additionally, the court examined whether the respondent had genuinely considered alternative options prior to proceeding with the dismissal.

The court embarked on a detailed analysis of the evidence provided by both parties, assessing the legitimacy of the reasons for termination and the procedural correctness of the dismissal process. It found that the respondent had not sufficiently demonstrated that the dismissal was for a valid reason, nor had they shown that all reasonable steps were taken to avoid the dismissal. Consequently, the court ruled that the dismissal was unfair and ordered that Ms Wilson be reinstated to her position, or, in the alternative, compensated for the wrongful termination.

The final orders of the court mandated that Workpower Incorporated reinstate Ms Wilson to her former role, or if that was not feasible, pay her compensation equivalent to four weeks of her remuneration. Additionally, the respondent was directed to pay the applicant's costs associated with the proceedings.

Orders