Accused of misconduct, but awarded $7901

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Accused of misconduct, but awarded $7901

A woman made redundant from her position of gym manager, and then told later it was in fact a dismissal for misconduct, has been awarded $7901.36 in damages — including $1379.22 for childcare costs while she looked for another job.

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A woman made redundant from her position of gym manager, and then told later it was in fact a dismissal for misconduct, has been awarded $7901.36 in damages — including $1379.22 for childcare costs while she looked for another job.

[Full text of this case: GW v Nytro Pty Ltd trading as Nitro Gym [2012] FWA 1927 (9 March 2012)]

GW was hired by Nitro Gym in Victoria on 10 October 2010, and made redundant on 22 July 2011. There had been no consultation with her on the redundancy as required under the Fitness Industry Award 2010.

Subsequent to the terminations she was told it was for misconduct. G W then applied to FWA for a ruling the dismissal was harsh, unjust and unreasonable.

Suspected
 
In Nitro’s written response, it stated that GW had been dismissed for serious misconduct. It was stated that Nitro suspected that GW had altered group certificates; had not improved her performance notwithstanding two written warnings; and was making mistakes and costing the company money.

When the matter was first heard, Nitro was excused from attending due to a misunderstanding by GW, but she gave evidence and a transcript was sent to Nitro.

At the second hearing, GW was to be cross-examined and Nitro was to present evidence, but Nitro did not attend.

Deputy President Greg Smith said that as a result of GW’s uncontested evidence it was not necessary for him to consider two statutory declarations she had provided from previous Nitro employees.

Not genuine redundancy
 
He ruled that as GW was not consulted over the redundancy it did not constitute a genuine redundancy. He also said GW was not made advised of the alleged misconduct at the time of the termination.

DP Smith found that:
  • There was no valid reason to terminate the employment of GW.
  • GW was notified originally that she had been made redundant but this lacked supporting substance.
  • GW was not advised that her termination was as a result of misconduct.
  • GW was not given an opportunity to respond to any reason related to capacity or performance, if indeed that was the reason.
  • GW was not advised of any performance-related issues.
DP Smith said he had considered these matters and found that she was harshly, unjustly and unreasonable terminated. Re-instatement being inappropriate, he ordered GW be paid compensation.

Childcare costs awarded
 
GW assessed her loss of remuneration at $5525.52 and loss of superannuation and additional annual leave at $996.62.
 
She also claimed childcare expenses incurred in looking for and taking up new employment, which DP Smith assessed at $1379.22.
 
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