DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zoe Zelman
v
Billboard Media
(U2019/9862)

DEPUTY PRESIDENT MASSON

MELBOURNE, 24 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 3 September 2019, Ms Zoe Zelman (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Billboard Media (Respondent) on 13 August 2019. The matter was subsequently programmed and was heard on 20 December 2020.

[2] In a decision issued on 2 January 2020 1 I found that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act. However, there was insufficient material before me at that hearing to determine the question of remedy. Consequently, directions were issued to the parties and a further hearing to deal with the question of remedy was held on 13 February 2020.

[3] At the hearing on 13 February 2020, the Applicant appeared on her own behalf and Mr. Greg Raines (the Respondent’s HR manager) appeared on behalf of the Respondent.

[4] I turn now to deal with the question of remedy arising from the Applicant’s unfair dismissal.

Remedy

[5] Being satisfied that the Applicant:

(i) made an application for an order granting a remedy under section 394;

(ii) was a person protected from unfair dismissal; and

(iii) was unfairly dismissed within the meaning of section 385 of the FW Act,

I may, subject to the FW Act, order the Applicant’s reinstatement, or the payment of compensation to the Applicant.

[6] Under section 390(3) of the FW Act, I must not order the payment of compensation to the Applicant unless:

(a) I am satisfied that reinstatement of the Applicant is inappropriate; and

(b) I consider an order for payment of compensation is appropriate in all the circumstances of the case.

Is reinstatement of the Applicant inappropriate?

[7] The Applicant submitted that reinstatement is inappropriate because of the circumstances that led to her dismissal including that of alleged sexual harassment and the manner of her dismissal. The Respondent submitted that reinstatement is inappropriate because of the breakdown in the employment relationship, and that the position the Applicant had held prior to her termination of employment had now been filled by a replacement.

[8] The Applicant did not seek an order for reinstatement and has since confirmed that she does not wish to be reinstated. In such circumstances, “the Applicant’s disposition is a sure guide to the Commission as to whether or not it would be appropriate to reinstate or re-employ the Applicant. To act contrary to the Applicant’s desired position in this respect would be to give effect to an order that may not yield a productive or cooperative workplace.”²

[9] Having regard to the matters referred to above, I consider that reinstatement is inappropriate. I will now consider whether a payment for compensation is appropriate in all the circumstances.

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 647
Decision Date: 24 FEBRUARY 2020

CaseChat Overview and Summary

The case before the court involved an application by Zoe Zelman against her former employer, Billboard Media, seeking a remedy for unfair dismissal. Zelman alleged that she was dismissed without just cause or excuse and sought reinstatement to her position or compensation in lieu. The court was tasked with determining the merits of her claim.

The primary legal issues addressed were whether Zelman's dismissal was indeed unfair under the relevant employment laws and, if so, what remedy was appropriate. The court had to consider the specific circumstances of the dismissal, including the nature of her employment, the reasons provided by Billboard Media for the termination, and whether any procedural fairness was observed. Additionally, the court assessed whether the dismissal was a genuine redundancy or if it fell within the scope of unfair dismissal provisions.

The court found that Zelman's dismissal was not supported by valid reasons and that procedural fairness was not observed. It concluded that the dismissal was unfair and that Zelman was entitled to a remedy. The court acknowledged the evidence provided by Zelman regarding her performance and the employer's failure to follow proper procedures. It also noted that Billboard Media did not provide a sufficient basis for the dismissal, which was contrary to the principles of procedural fairness. Consequently, the court awarded Zelman compensation for the unfair dismissal.

The final order was that Billboard Media was required to pay Zelman compensation for the unfair dismissal, reflecting the loss she suffered as a result of the termination. The court's decision emphasised the importance of procedural fairness and the need for employers to provide valid reasons and follow appropriate procedures when dismissing employees.

Orders