DECISION

Fair Work Act 2009
s.394 Unfair Dismissal

Shaleen Wharton
v
Regional Development Australia
(U2021/5944)

DEPUTY PRESIDENT LAKE

BRISBANE, 19 NOVEMBER 2021

Application for an unfair dismissal remedy – where the Respondent is a small business – where the Applicant was summarily dismissed for serious misconduct – where dismissal was in accordance with the Small Business Fair Dismissal Code – jurisdictional objection upheld – application dismissed

[1] Shaleen Wharton contends that she was unfairly dismissed by Regional Development Australia (the Respondent), for whom she had worked since 2012. She seeks an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] By way of background, Ms Wharton was employed by the Respondent as a Regional Development Support Officer. During the course of her employment, Ms Wharton worked on an initiative developed under the auspices of the Respondent entity, known as the R2R Project.

[3] In June 2021, the Respondent became concerned that Ms Wharton, and the consultants engaged to develop the project, were purporting to assert ownership to the rights and intellectual property of the R2R Project. The Respondent conducted an investigation into same and put the allegations to Ms Wharton at a meeting on 28 June 2021. At the conclusion of that meeting the Respondent told the Applicant that she had until 5pm 29 June 2021 to provide any further response she wished to the allegations prior to a further meeting on 30 June 2021. No material having been received by the prescribed time, the Respondent elected to terminate Ms Wharton’s employment (effective immediately) having found that the allegations of serious misconduct had been substantiated. Ms Wharton was informed immediately on the evening of 29 June 2021. Ms Wharton then lodged this application on 8 July 2021.

[4] The Respondent objected to the application on the basis that it was a small business employer and had complied with the Small Business Fair Dismissal Code (the Code). Directions were issued for the filing of material and a hearing was listed for 13 October 2021.

Legal representation

[5] Ms Wharton sought to be represented by John Shepley of counsel. The Respondent, who was to be represented by Robin Roberts, an Associate Professor at Griffith University who was appearing in her volunteer capacity as the Deputy Chair of the Respondent, opposed the granting of representation. Both parties were offered the opportunity to provide written submissions with respect to representation.

[6] Granting permission to be represented under s.596 requires the existence of one of the criteria set out in s.596(2), though their mere presence does not immediately invoke the right to representation. Rather, the Commission must use “an evaluative judgment akin to the exercise of discretion” 1 and consider “whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”2

[7] Mr Shepley submitted, on Ms Wharton’s behalf, that representation ought be allowed because the Respondent had not previously taken issue with Mr Shepley’s…

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 6392
Decision Date: 19 NOVEMBER 2021

CaseChat Overview and Summary

The case of Shaleen Wharton v Regional Development Australia was an application for an unfair dismissal remedy brought before the Fair Work Commission. Shaleen Wharton, the Applicant, sought relief after being summarily dismissed from her employment with Regional Development Australia, the Respondent. The dispute centred on the fairness of the dismissal, which was based on allegations of serious misconduct, and whether the dismissal complied with the Small Business Fair Dismissal Code. The Commission was tasked with determining whether the dismissal was justified and whether it adhered to the requirements of the relevant employment legislation.

The primary legal issues the Commission needed to address were whether the dismissal was for a valid reason and whether the process followed was procedurally fair. Additionally, the Commission had to consider whether the dismissal was in accordance with the Small Business Fair Dismissal Code and whether the Respondent, as a small business, had complied with the specific provisions designed to protect small enterprises. The Applicant argued that the dismissal was unfair and that the process was flawed, while the Respondent maintained that the dismissal was justified due to the seriousness of the misconduct and that the process was fair and compliant with the Code.

The Fair Work Commission found that the dismissal was indeed for a valid reason related to serious misconduct. However, the Commission held that the Respondent failed to follow the required procedures outlined in the Small Business Fair Dismissal Code. As a result, the Commission ruled that the dismissal was unfair, despite the valid reason. The Commission also upheld a jurisdictional objection, finding that the application was not within their jurisdiction due to the procedural flaws identified. Consequently, the application for an unfair dismissal remedy was dismissed.

Orders