Skei Batton v The Environment Centre NT Inc - [2024] FWC 597

[2024] FWC 597

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Skei Batton
v

The Environment Centre NT Inc

(U2023/8548)

COMMISSIONER RIORDAN

DARWIN, 6 MARCH 2024

Application for an unfair dismissal remedy

On 7 September 2023, Ms Skei Batton (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed by the Environment Centre NT Inc (the Respondent) on 28 August 2023.

In its Form F3 – Employer Response, the Respondent raised a jurisdictional objection to the application on the basis that it is a small business employer and had complied with the Small Business Fair Dismissal Code.

Background

The Applicant was employed by the Respondent as the Finance and Office Manager, from 26 July 2022 until the date of her dismissal.

At 12:39pm on 20 July 2023, Ms Allana Brown, Biodiversity Policy Officer, sent email correspondence to the Applicant with the subject line ‘Reimbursing volunteers for fuel costs’:

“Hi Skei,

Next Thursday 27 July we are doing the nature laws ad shoot. We have 3 sets of volunteers who are travelling from Darwin to various locations over the course of the day to be in the ad for us (Corrobboree billabong, Mary River campground, Kakadu). I’d like to get your advice please on what process I need to follow to be able to reimburse their fuel costs?
What information do you need – vehicle/distance etc? Do we have a form I can provide to our volunteers to fill out?
Thanks so much,
Allana”

At 2:17pm on 20 July 2023, the Applicant sent reply correspondence stating:

“Hi Al,
Those sound like production costs to me – Just let the producers of the video sort it out. Realistically they should have included all their costs in their quotes so all we would be doing is paying their invoice when they present it to us.
Kind regards
Skei Batton
Finance & Office Manager”

Ms Brown responded to the Applicant as follows:

“Hi Skei,
No, these costs are not covered – they are ECNT volunteers whose expenses ECNT must cover.
Can you please let me know the best way to do this?
Thanks,
Allana”

The Applicant further responded to Ms Brown as follows:

“Hi Al,

Well, that’s going to depend on the volunteers – eg:
·   Who are they?
·   What basis are they requesting payment on – eg receipts based expense reimbursement or via invoice? – (and following that answer – what are your budget limits?)
·   Have they already been onboarded to ECNT accounting systems as an existing Debtor or Creditor?
·   Do they fit the definition of a Related Party?
·   Based on the answer to the previous question, could the payments be constructed as a Reportable Fringe Benefit?
Without that information I am unable to answer your questions,…

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: [2024] FWC 597
Decision Date: 6 MARCH 2024

CaseChat Overview and Summary

- Parties, Dispute, and Court:
The case before the Fair Work Commission (FWC) is between Skei Batton (the Applicant) and The Environment Centre NT Inc (the Respondent). Skei Batton filed an application for unfair dismissal remedy against the Respondent, alleging she was dismissed without just cause or excuse. The matter was heard by Commissioner Riordan on 18 December 2023. The Commission's decision was rendered on 6 March 2024.

- Legal Issues:
The central legal issues in this case are whether Skei Batton was unfairly dismissed by the Respondent and, if so, what remedy should be awarded. Specifically, the Commission needed to determine if the dismissal was harsh, unjust, or unreasonable under section 385 of the Fair Work Act 2009 (FW Act). Additionally, the Commission considered whether the dismissal complied with the Small Business Fair Dismissal Code and if the dismissal was consistent with the Code.

- Court's Reasoning and Outcome:
Commissioner Riordan found that Skei Batton was unfairly dismissed by the Respondent. The Commission held that while the Respondent had a valid reason to terminate Skei Batton due to her conduct and absence from work, the lack of procedural fairness in the dismissal process made the termination harsh. The Commission noted that the Executive Director, who was also the complainant, conducted the investigation and made the decision to terminate Skei Batton's employment, which is not in line with procedural fairness principles. The Commission concluded that Skei Batton did not receive her statutory entitlement to a "fair go," leading to the finding of unfair dismissal. As a remedy, the Commission ordered the Respondent to pay Skei Batton an additional $12,000 (less tax) plus superannuation.

- Final Orders:
The Fair Work Commission orders that The Environment Centre NT Inc pay Skei Batton an additional $12,000 (less tax) plus superannuation as a remedy for her unfair dismissal.

Orders