When reason for dismissal is not the dispute

Cases

When reason for dismissal is not the dispute

Litigation surrounding dismissal does not always focus on the reason for dismissal. Questions relating to enforcement, bias, representation and other matters can arise, as illustrated in these cases.

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Litigation surrounding dismissal does not always focus on the reason for dismissal. Questions relating to enforcement, bias, representation and other matters can arise – as illustrated in these cases.
 

Company and director fined for not paying compensation 
Suspension without pay with no return date was not termination
Costs warning did not constitute bias
No bias, but concerns should have been directed to Bar Association
No legal representation needed – HR sufficient
IT issues justified extension of time to lodge application
Witness’s identity kept secret by court
'Unreasonable' sexual impropriety claims result in costs award
Settlement offers by employer, but no costs against applicant who lost
 

Company and director fined for not paying compensation

The Federal Circuit Court has fined the employer company and its director more than $47,000 for failing to comply with an FWC order to pay $2,200 compensation to an unfairly dismissed employee.

Justice O'Sullivan said the penalties were justified as the director and the company had deliberately not complied with the FWC order.

Fair Work Ombudsman v World Gym Sunshine Pty Ltd & Anor [2014] FCCA 2201 (19 September 2014) 

Suspension without pay with no return date was not termination

A full bench of the FWC rejected the applicant’s appeal based on an argument that his suspension without pay with no specified return date should be deemed a termination.

The full bench concluded the evidence did not support the view that a dismissal had occurred.

Appeal by Davy against decision of Simpson C of 4 June 2014 [[2014] FWC 3624] Re: ABS Business Sales P/L t/a ABS Business Sales [2014] FWCFB 6141 - Catanzariti VP Asbury DP Spencer C - 15 September 2014

Costs warning did not constitute bias

Fair Work Commissioner Williams has refused to disqualify himself from an unfair dismissal hearing. He rejected arguments of apprehended bias by an applicant-employee who claimed the commission’s warning about costs orders signalled the commissioner had negatively assessed the dismissed employee's claim.

Commissioner Williams sent the employee and his solicitor a letter stating: "Please be aware that applicants can be ordered to pay the costs of the other party, see sections 400A and 611 of the Fair Work Act 2009 below."

The commissioner reasoned that a cautionary note about costs did not indicate any bias. 
D v RePipe Pty Ltd [2014] FWC 7018 (8 October 2014) 

No bias, but concerns should have been referred to Bar Association

The Federal Court considered comments by a Federal Circuit Court judge about a barrister could have been better handled by referring concerns to the Bar Association, but the judge’s comment did not demonstrate bias.

The barrister was representing an ACT government disability services worker who was arguing he was dismissed for exercising workplace rights.

The barrister asked the Federal Circuit Court judge to stand down as he had criticised her in another adverse action case in 2011 in which she had represented her brother. The judge said a decision to continue in the current case was “a delicate balance".

Justice Katzmann in the Federal Court  stated it would have been better for everyone if the judge had referred his concerns directly to the Bar Association for investigation, but there was no proper basis for an allegation of bias against her client, actual or imputed.

D v Australian Capital Territory [2014] FCA 946 (2 September 2014)  

No legal representation needed – HR sufficient

Senior deputy president Watson in the FWC decided that Target Australia should not be legally represented in an unfair dismissal hearing. He rejected an argument that it could not be represented by an HR advisor because she was a witness.

The commissioner found the HR advisor's evidence was limited in its compass, supported that of another company witness and was supported by a contemporaneous record.

R v Target Australia Pty Ltd [2014] FWC 7207 (13 October 2014)

IT issues justified extension of time to lodge application

Senior deputy president Richards granted an extension of time to an employee unable to electronically lodge a general protections application with the Fair Work Commission because of issues with data upload limits. 

R v Bechtel Australia Pty Ltd [2014] FWC 7197 (13 October 2014)

Witness’s identity kept secret by court

The WA Supreme Court refused to reveal the identity of an employee who reported to management that a female employee was inviting colleagues to look at her breasts, ruling it would undermine the effectiveness of the employer’s workplace harassment policies.

The female employee is taking defamation action and has only been told by the employer that the person who made the complaint was an employee.

NW v Bechtel (Western Australia) Pty Ltd [2014] WASC 375 (9 October 2014) 

Sexual impropriety claims result in costs award over adverse action

The Federal Court has ordered a former Energy Australia corporate director to pay some of the company's costs it incurred in defending her  adverse action claim against it, finding she made unreasonable allegations of sexual impropriety by her managing director.

S v Energy Australia Services Pty Ltd (No 7) [2014] FCA 1091 (13 October 2014)  
 

Settlement offers by employer, but no costs against applicant who lost

The Federal Circuit Court has rejected a costs claim by a company that twice offered an employee money to settle an adverse action case. The employee ended up losing the case in court.

The employee argued she didn't receive the $11,000 offer in time to take it up by its 5pm, July 23, deadline.

Justice O'Sullivan said he was not satisfied there was evidence of a deliberate decision by the employee to refuse a reasonable offer of settlement.

M v Executive Edge Travel Pty Ltd (No.2) [2014] FCCA 2271 (8 October 2014) 

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