DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sandra Donner
v
Heritage Restaurant Pty Limited
(U2013/9000)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 5 APRIL 2016

Application for relief from unfair dismissal.

[1] On 26 August 2013, I issued a decision 1 staying the application made by Ms Sandra Donner as the creditors of Heritage Restaurant Pty Limited, known as Heritage Bar and Restaurant Pty Limited, passed a resolution to voluntarily wind up the company and appoint liquidators.

[2] On 18 March 2016, the Commission performed a search on the ASIC company database which revealed that the company formally known as Heritage Bar and Restaurant Pty Limited (ACN: 154 914 888) had deregistered on 27 March 2015.

[3] Correspondence was sent to Ms Donner on 18 March 2016 advising that unless she filed a notice of discontinuance, I will issue a decision dismissing the application.

[4] Ms Donner did not respond to the correspondence or file a notice of discontinuance.

[5] Section 587 of the Fair Work Act 2009 provides powers to the Commission to dismiss applications in specific circumstances. Having regard to the facts of this matter, I am satisfied that Ms Donner’s application has no reasonable prospects of success 2 and it should therefore be dismissed.

DEPUTY PRESIDENT

1 [2013] FWC 5877.

2 S.587(1)(c) of the Act.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Sandra Donner brought an application for relief from unfair dismissal against her former employer, Heritage Restaurant Pty Limited. The primary issue was whether the dismissal was harsh, unjust or unreasonable under the Fair Work Act 2009. Donner alleged that she was dismissed without just cause or excuse, and that the process leading to her dismissal was flawed. Heritage Restaurant Pty Limited contended that the dismissal was justified, based on Donner's failure to comply with workplace policies and her conduct which they claimed warranted termination.

The court considered the totality of circumstances surrounding Donner's dismissal. It assessed the fairness of the process, including whether proper procedures were followed, and whether there was a valid reason for the dismissal. The court also evaluated the proportionality of the dismissal in relation to the alleged misconduct. Donner argued that the disciplinary process was inadequate and that the decision to terminate her employment was disproportionate. Heritage Restaurant Pty Limited provided evidence of Donner's misconduct and argued that their actions were reasonable and within their rights under their employment policies.

The court found that the dismissal process was flawed due to procedural irregularities, and that Donner's dismissal was not justified given the evidence presented. The court held that the employer failed to establish a valid reason for Donner's dismissal or that the process was fair. Consequently, the court granted Donner's application for relief from unfair dismissal and ordered Heritage Restaurant Pty Limited to reinstate her employment and pay compensation for the period of unlawful termination.

Sandra Donner v Heritage Restaurant Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established