DECISION

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

Trudi Puszka
v
Ryan Wilks Pty Ltd T/A Ryan Wilks Proprietary Limited
(U2018/8666)

COMMISSIONER CAMBRIDGE

SYDNEY, 7 MARCH 2019

Unfair dismissal - summary dismissal - misconduct involving drunkenness at after work function - significant factual errors with aspects of reasons for dismissal - no valid reason for dismissal - nature of misconduct not basis for summary dismissal - dismissal harsh, unjust and unreasonable - reinstatement appropriate remedy.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 20 August 2018, and it was made by Trudi Puszka (the applicant). The respondent employer is Ryan Wilks Pty Ltd T/A Ryan Wilks Proprietary Limited (ABN: 82 056 662 938), (the employer, or RW, or Ryan Wilks).

[2] The application indicated that the date that the applicant’s dismissal took effect was 2 August 2018. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation, and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted at Sydney on 3 December 2018. At the conclusion of proceedings held on 3 December 2018, only the evidence in the matter had been completed, and a timetable was established for the provision of further written submissions which concluded with the final submissions of the applicant being provided on 29 January 2019.

[4] At the Hearing the applicant represented herself, and the employer was represented by Mr G Jervis from The National Electrical Contractors Association (NECA), who appeared with Mr J Miljak. As the dismissal of the applicant was made upon findings of serious misconduct, for which the applicant was dismissed without notice, the Parties agreed that the employer would present its evidentiary case before that of the applicant. MrJervis called two witnesses who provided evidence on behalf of the employer. The applicant introduced evidence from one other witness and the applicant herself gave evidence as the second witness who provided evidence in support of the unfair dismissal claim.

Background

[5] The applicant had worked for the employer for about one year. The applicant was employed as a Project Administrator and she performed administrative duties covered by the Clerks Private Sector Award 2010.

[6] The employer operates a business as a commercial and industrial electrical contractor specialising in the installation and maintenance of electrical systems and networks. The employer’s major client is the Sydney Opera House (SOH). The applicant’s work as a Project Administrator was undertaken on site at the SOH, and she performed a broad range of administrative tasks associated with the employer’s contractual arrangements with the SOH.

[7] The applicant had a commendable work history and there were no performance or conduct issues that arose in respect of her employment prior to events that…

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

AGLC: Trudi Puszka v Ryan Wilks Pty Ltd T/A Ryan Wilks Proprietary Limited [2019] FWC 1132
Case: [2019] FWC 1132
Decision Date: 7 MARCH 2019

CaseChat Overview and Summary

The case involved Trudi Puszka, who was dismissed from her employment by Ryan Wilks Pty Ltd, trading as Ryan Wilks Proprietary Limited. The primary issue before the court was whether Puszka's dismissal was unfair, particularly in light of misconduct involving drunkenness at an after-work function. The case was heard and determined in the Fair Work Commission.

The legal issues central to this case included whether the employer provided a valid reason for the dismissal and if the dismissal was harsh, unjust, or unreasonable. The court examined the nature of the misconduct and whether it warranted a summary dismissal. Additionally, the court considered whether there were significant factual errors in the reasons provided for the dismissal. The court had to assess if the dismissal process complied with the requirements of fairness and if the remedy of reinstatement was appropriate.

The court found that there were substantial factual inaccuracies in the reasons given for the dismissal, and that the nature of the misconduct did not justify a summary dismissal. The employer failed to provide a valid reason for the dismissal, and the process was deemed to be harsh, unjust, and unreasonable. Given these findings, the court concluded that the appropriate remedy was reinstatement. The court ordered that Puszka be reinstated to her position and awarded her compensation for the period of her unlawful dismissal.

Orders