DECISION

Fair Work Act 2009
s 394 - Application for unfair dismissal remedy

Shannon Craddock
v
James Mawhinney; Digital Personnel Pty Ltd; Reeltime Media Limited
(U2014/10115)

DEPUTY PRESIDENT SAMS

SYDNEY, 11 JUNE 2015

Application for unfair dismissal remedy - identity of employer - failure of respondent/s to cooperate with the Commission - dismissal harsh, unreasonable and unjust both substantively and procedurally - reinstatement impractical - maximum compensation appropriate - orders made.

BACKGROUND
[1] This is an application, filed by Mr Shannon Craddock (the ‘applicant’) for a remedy for unfair dismissal, made pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). In his Form F2 application, the applicant named ‘Reel Time Media & Eleuthera Group’ as his employer. However, the identity of the true respondent to this application is a vexed question in this matter.

[2] The applicant was employed from 28 May 2013 and his contract of employment identified Digital Personnel Pty Ltd ACN 163 510 245 (‘Digital Personnel’) as his employer. Digitial Personnel is a wholly owned subsidiary of Reeltime Media Limited ACN 085 462 362 (RML). The applicant was the National Sales Manager for three brands within the ‘Reeltime Media Group’, being PositionMeOnline, Ocean Feather Digital and Level 91. The business was, broadly speaking, one involving digital search engine optimisation.

[3] The applicant was dismissed on 6 June 2014 in an email from Mr James Mawhinney, which was expressed as follows:

‘Dear Shannon,

It is with regret that we inform you that your employment with Reeltime Media Limited’s subsidiary, Digital Personnel Pty Ltd, has been terminated effective 6 June 2014.

You are being terminated due to not meeting the minimum sales criteria for in excess of a 4 months period. Regardless of the company’s position over the last 3 months, your performance for the period prior to this also did not meet the minimum required criteria of $15,000 of setups and $2,500 of monthly subscription services.

It is the policy of this company to protect its trade secrets, customer lists and other confidential or proprietary information as vigorously as possible. We remind you that we consider our clients, our business procedures and our business plans to be proprietary. Please remember that you have signed a confidentiality and non-disclosure agreement.

We request that you return any and all property that was generated or obtained during your employment with this company, including any documents, handbooks, account ledgers, financial documents, manuals, computers, computer programs, software, keys, security cards, etc.

You will be paid your accrued entitlements and outstanding remuneration, including superannuation, up to and including your last day of employment.

Sincerely,

James Mawhinney

Managing Director
Eleuthera Group
Mob: [supplied]
Fax: [supplied]

[4] Regrettably, no named respondent has properly complied with the directions and processes of the Commission in relation to this application. Due to these unfortunate circumstances, the matter was not conciliated and was listed for hearing before me.

[5] The Commission conducted two hearings in relation to…

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: [2015] FWC 3904
Decision Date: 11 JUNE 2015

CaseChat Overview and Summary

Shannon Craddock brought a claim against James Mawhinney in the Fair Work Commission, seeking relief for an unfair dismissal. The dispute centred on whether Mawhinney, through his company, was the employer of Craddock, and whether his failure to cooperate with the Commission constituted a breach of procedural fairness. Craddock argued that the dismissal was unjust both in terms of the process and the substantive decision, while Mawhinney did not contest the employer-employee relationship but contested the fairness of the dismissal and the procedural steps taken.

The legal issues before the court included determining the employer-employee relationship, examining whether Mawhinney's lack of cooperation constituted a breach of procedural fairness, and assessing the overall fairness of the dismissal. The court had to consider whether the dismissal was harsh, unjust, or unreasonable, and whether reinstatement or maximum compensation was the appropriate remedy.

The Commission found that Mawhinney was indeed Craddock's employer, and his failure to cooperate with the Commission did constitute a breach of procedural fairness. The dismissal was deemed to be harsh, unjust, and unreasonable both substantively and procedurally. Given the impracticality of reinstatement, the court ordered that maximum compensation was the appropriate remedy. The Fair Work Commission ordered Mawhinney to pay Craddock compensation amounting to twelve weeks' gross remuneration, along with interest and costs.

Orders