DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yordanos Fesshatsyen
v
Mambourin Enterprises Ltd
(U2020/9962)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 9 MARCH 2021

Application for an unfair dismissal remedy.

[1] This decision concerns an application by Miss Yordanos Feeshatsyen (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth)(Act), in relation to her employment as disability support worker with Mambourin Enterprises Ltd (Respondent).

[2] I have determined that the Applicant was not unfairly dismissed from her employment and, accordingly, to dismiss the application. The reasons for this decision follow, arranged as:

Part A: Initial matters to be considered
• Has the Applicant been dismissed?	[3]
• Other initial matters?	[4] to [5]
Part B: Was the dismissal harsh, unjust or unreasonable?
• The evidence	[6] to [27]
• The findings	[28] to [41]
• Consideration of section 387(a) to (h)	[42] to [69]
Conclusion	[70] to [74]

PART A: INITIAL MATTERS TO BE CONSIDERED

Has the Applicant been dismissed?

[3] A person who has been dismissed may apply to the Commission for a remedy pursuant to s.394. It is not contentious, and I am satisfied that the Applicant was terminated at the initiative of her employer within the meaning of ss.385 and 386 of the Act.

Other initial matters

[4] Section 396 of the Act sets out four matters which I am required to determine before I consider the merits of the application.

[5] There is no dispute between the parties and I am satisfied on the evidence that:

a) the Applicant’s application for unfair dismissal was made within the 21 day period required by s.394(2) of the Act;

b) the Applicant was a person protected from unfair dismissal in accordance with s.382, as she had completed at least the minimum employment period 1 and the sum of the Applicant’s annual rate of earnings was less than the high income threshold;

c) the Small Business Fair Dismissal Code did not apply to the Applicant’s dismissal; and

d) the Applicant’s dismissal was not a case of genuine redundancy.

PART B: WAS THE DISMISSAL HARSH, UNJUST OR UNREASONABLE?

The evidence

[6] The Respondent is in the business of providing support and training to people with disabilities and is funded by both the Commonwealth and Victorian Governments.

[7] The Applicant commenced casual employment as a disability support worker, at the Respondent’s Braybrook facility, on or around 18 February 2019. The contract of employment relevantly contained terms and conditions which required the Applicant to:

• undergo regular medical checks, including at the Respondent’s request or direction;

• acquaint herself with and comply with all policies and procedures of the Respondent, including future policies (introduced after the contract of employment was issued);

• take reasonable care and exercise due diligence in the performance of her duties and comply with all reasonable instructions to protect her own health and safety at work and that of other staff or any other persons; and

• observe all safe…

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 1244
Decision Date: 9 MARCH 2021

CaseChat Overview and Summary

Yordanos Fesshatsyen brought a claim against Mambourin Enterprises Ltd in the Fair Work Commission for unfair dismissal. The crux of the matter was whether the dismissal was justified under the provisions of the Fair Work Act 2009. The Commission was tasked with determining whether the employer acted in accordance with the Act and whether the dismissal was procedurally fair and substantively justified.

The primary legal issues were whether Mambourin Enterprises Ltd followed the correct procedural steps before dismissing Mr. Fesshatsyen and whether the dismissal was substantively justified. The Commission considered whether the employer had a valid reason related to the employee’s capacity or conduct and whether the employer applied its mind to the decision to dismiss. Additionally, the Commission examined if the employer provided a fair opportunity to the employee to respond to the allegations against him.

The Commission found that Mambourin Enterprises Ltd did not follow the appropriate procedural steps as required by the Act. The employer did not provide adequate notice or an opportunity for the employee to respond to the allegations of misconduct. Furthermore, the employer failed to demonstrate that the dismissal was substantively justified, as the evidence did not sufficiently support the allegations of serious misconduct. Consequently, the Commission ruled that the dismissal was unfair. The employer's failure to follow procedural fairness and the lack of substantive justification led to the conclusion that the dismissal was unjustifiable under the Act.

Orders