EX-TEMPORE DECISION

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

Zoe Zelman
v
Billboard Media
(U2019/9862)

DEPUTY PRESIDENT MASSON

MELBOURNE, 2 JANUARY 2020

Application for an unfair dismissal remedy.

[1] This matter was heard in Melbourne on 20 December 2019. At the conclusion of the proceedings, the matter was briefly adjourned following which I handed down the decision on transcript. This is the published version of the decision in transcript edited for style and clarity.

[2] On 3 September 2019, Ms. Zoe Zelman (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that she had been unfairly dismissed from her employment with Billboard Media (the Respondent). The Applicant seeks a remedy of compensation.

When can the Commission order a remedy for unfair dismissal?

[3] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[4] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[5] Section 382 of the Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.

When has a person been unfairly dismissed?

[6] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[7] I must consider each of those matters.

Background

[8] The uncontested factual background to the matter is as follows:

[9] The Applicant commenced employment on 3 July 2018. Her employment ceased on 13 August 2019. The Applicant was employed by the Respondent initially as an accounts receivable officer but proceeded to perform other administrative duties within the Respondent's business.

[10] At the time of the Applicant's termination of employment she was employed on an annual salary of…

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 5
Decision Date: 2 JANUARY 2020

CaseChat Overview and Summary

Zoe Zelman lodged an application with the Fair Work Commission for an unfair dismissal remedy against her former employer, Billboard Media. Zelman claimed she was dismissed without valid reason and in a manner that was harsh, unjust and unreasonable. Billboard Media did not attend the proceedings. The Deputy President found that Zelman had not resigned, as the company had claimed, but was instead dismissed. The Deputy President found that the dismissal was unfair because there was no valid reason for it and the process was lacking in procedural fairness. The company failed to follow any proper procedure and had a HR manager on staff, who should have ensured appropriate processes were in place. The Deputy President found that the working environment, which exposed Zelman to sexual harassment and inappropriate conduct, was also a relevant background to the termination of her employment. The Deputy President found that the dismissal was harsh, unjust and unreasonable and that Zelman was therefore unfairly dismissed. The matter will now proceed to determine the remedy.

Orders