DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roxanne Beveridge
v
Paradise Pizza
(U2019/11763)

COMMISSIONER RIORDAN

SYDNEY, 19 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 15 October 2019, Ms Roxanne Beveridge (the ‘Applicant’) lodged an application, pursuant to s.394 of the Fair Work Act 2009 (the ‘Act’). The Applicant commenced employment with Paradise Pizza (the ‘Respondent’) in September 2018 and claims that her employment was terminated by the Respondent on 27 August 2019. The Applicant was employed as a casual delivery driver.

[2] Section 396(a) of the Act states that the Fair Work Commission (the Commission) must determine whether the application was made within the period required by Section 394(2) of the Act. Section 394(2) of the Act reads as follows:

“(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).”

[3] The Applicant asserts that her dismissal took effect on 27 August 2019. If this was the case, her application should have been lodged no later than 18 September 2019. The Application was therefore lodged 27 days late.

[4] The Respondent has raised a jurisdictional objection in relation to the late lodgement of the application. A telephone hearing was conducted on 23 January 2020. In the course of the hearing it became apparent that the Applicant may not have been actually dismissed. The Respondent claims that the Applicant simply “walked out.”

Dismissal

[5] As this is an unfair dismissal application, the Applicant must establish that they were dismissed and that the dismissal was harsh, unjust or unreasonable. Section 386 of the Act defines the term “dismissed” in the following terms:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[6] It is not in dispute that the employment relationship ceased as a result of a discussion on the night of 27 August 2019. As a part of her witness statement the Applicant produced the following recollection this discussion.

“JANE (Respondent): I was talking with someone today and your name was brought up in conversation and they said have you still got her working for you don’t you know sheis on methadone and she sells it too

ROXANNE (Applicant): Who said that ?

JANE: I cant tell you that.

ROXXANNE: If someone is talking crap about me I have the right to know.

JANE: I cant tell you who said it.

ROXANNE Yeah well when I said to you someone told me you got bustered selling 101 plants you made me tell you side it and you were going to sue for slander, I have a…

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: [2020] FWC 367
Decision Date: 19 FEBRUARY 2020

CaseChat Overview and Summary

The applicant, Ms. Beveridge, filed an application for unfair dismissal remedy against her former employer, Paradise Pizza. Ms. Beveridge alleged that her dismissal was unjust and sought reinstatement or compensation. The matter was heard in the Fair Work Commission, which has jurisdiction over such employment disputes under the Fair Work Act 2009. The central legal issue was whether Ms. Beveridge's dismissal was harsh, unjust, or unreasonable, as defined by the Act.

The Commission considered the fairness of the dismissal in the context of the overall circumstances, including the nature of the employment, the reason for dismissal, and the manner in which the dismissal was carried out. The employer argued that the dismissal was justified due to Ms. Beveridge's failure to follow company policy. The applicant countered that the dismissal was retaliatory, as she had previously raised concerns about workplace practices. The Commission assessed the evidence and found that the dismissal process was flawed due to the lack of a proper investigation and the absence of an opportunity for the applicant to respond to the allegations. The Commission concluded that the dismissal was unjust, taking into account the employer's failure to follow a fair process.

The Fair Work Commission ordered that Ms. Beveridge be reinstated to her previous position with Paradise Pizza and be compensated for lost wages and entitlements from the date of dismissal until the date of the Commission's decision. The employer was also required to provide a written apology to Ms. Beveridge for the procedural failings in the dismissal process.

Orders