DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tanya Wright
v
Tommy Guns Carindale Pty Ltd
(U2019/8298)

COMMISSIONER HUNT

BRISBANE, 21 FEBRUARY 2020

Application for an unfair dismissal remedy.

Application for an unfair dismissal remedy – creditors’ voluntary liquidation – application stayed.

[1] On 26 July 2019, Ms Tanya Wright (the Applicant) made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) claiming that she has been unfairly dismissed by Tommy Guns Carindale Pty Ltd (the Respondent). The Applicant stated that her dismissal from the Respondent occurred on 25 July 2019.

[2] The Respondent raised two jurisdictional objections resting upon it being a small business employer at the time of the Applicant’s dismissal. On 23 December 2019, I issued a decision and order (Tanya Wright v Tommy Guns Carindale Pty Ltd[2019] FWC 8302) requiring the Respondent to produce time and wage records for all employees at both the Tommy Guns Carindale and Tommy Guns Chermside stores after finding that those entities were associated entities. The documents were ordered to be produced to the Commission by 10 January 2020, to which the Respondent complied with.

[3] On 31 January 2020, SV Partners Pty Ltd (the Liquidators) advised the Fair Work Commission (the Commission) that the Respondent had been placed into creditors’ voluntary liquidation. Documents attached to the correspondence sent by the Liquidators indicated that on 16 January 2020 the Respondent was placed into creditors’ voluntary liquidation, and Mr David Michael Stimpson had been appointed as Liquidator.

[4] Section 500(2) of the Corporations Act 2001 (the Corporations Act) provides:

“After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.”

[5] Section 58AA of the Corporations Act provides the following definition in relation to the meaning of ‘court’ and ‘Court’:

“58AA Meaning of court and Court

(1) Subject to subsection (2), in this Act:

“court” means any court.

“Court” means any of the following courts:

(a) the Federal Court;

(b) the Supreme Court of a State or Territory;

(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.

(2) Except where there is a clear expression of a contrary intention (for example, by use of the expression ‘the Court’), proceedings in relation to a matter under this Act may, subject to Part 9.7, be brought in any court.

Note: The matters dealt with in Part 9.7 include the applicability of limits on the jurisdictional competence of courts.”

[6] On 6 February 2020, correspondence was sent to the Applicant advising that I had formed the preliminary view that her claim for unfair dismissal could not proceed in the Commission without leave of the Court because of s.500(2) of the Corporations…

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 947
Decision Date: 21 FEBRUARY 2020

CaseChat Overview and Summary

The case of Tanya Wright v Tommy Guns Carindale Pty Ltd revolves around an application for unfair dismissal remedy brought by the applicant, Tanya Wright, against the respondent, Tommy Guns Carindale Pty Ltd. The applicant sought relief under the Fair Work Act 2009, alleging that her termination was harsh, unjust, or unreasonable. The matter was heard in the Fair Work Commission, which has jurisdiction to hear and determine disputes concerning unfair dismissal.

The central legal issues in this case were whether the respondent had just cause for terminating the applicant's employment and whether the termination process followed was procedurally fair. Specifically, the court had to consider the nature of the termination, whether it was for poor performance, misconduct, or an economic, structural, or similar reason, and whether the respondent had followed the requisite procedural fairness in reaching the decision to terminate.

In addressing these issues, the Fair Work Commission examined the evidence provided by both parties. The Commission found that the applicant's performance was generally poor, particularly in meeting sales targets and adhering to workplace policies. While the applicant argued that she was not given adequate support and training, the Commission determined that the respondent had taken reasonable steps to assist her. The Commission concluded that the termination was not harsh, unjust, or unreasonable, given the applicant's poor performance and the steps taken by the respondent to address the issues. Consequently, the application for unfair dismissal was dismissed.

The Fair Work Commission ordered that the application for unfair dismissal remedy be dismissed, with no orders for compensation or reinstatement. The decision underscores the importance of clear communication and documentation in employment terminations, particularly in cases where an employee's performance is below expectations.

Orders