Can you contest unfair dismissal decisions?

Cases

Can you contest unfair dismissal decisions?

An employee's appeal has failed after the Fair Work Commission found she had simply attempted to re-run her original case. Meanwhile, another worker has successfully challenged an alleged fixed term contract.

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An employee's appeal has failed after the Fair Work Commission found she had simply attempted to re-run her original case.

Meanwhile, another worker has successfully challenged an alleged fixed term contract.

No joy for re-run of dismissal case


A FWC full bench has ruled that attempting to simply re-run an unfair dismissal will not result in success at the appellate level.

The dismissed employee tried to run her case again before a full bench. The full bench noted the same evidence was presented again:

“The appellant did not deny placing signs all over Adelaide protesting her dismissal. She had not mentioned Ms B and had ‘been told’ by police she had a right to protest. She had wanted to inform the public of what had happened to her.

"She admitted to writing on the lawyer’s envelope ‘UP YOURS C- – NO SURRENDER’ and ‘SUE ME 4 DEFAM Id love to get you suits in a court of any kind, I dare you’, but believed anyone would understand that she might react in this way.

"She believed the commissioner had no understanding of the depths of her despair and the efforts she needed to go to clear her name and reputation."

The full bench ruled against the employee:

“ … we are not satisfied that the appellant has established it is in the public interest to grant permission to appeal. We are not persuaded that she has established an arguable case of error in relation to the decision under appeal...

"It is sufficient, for present purposes, to observe that in support of her appeal, the appellant essentially sought to re-run the case she advanced before the commissioner"

H v Calvary Health Care Adelaide Limited [2016] FWCFB 5223 (3 August 2016)

Contract unclear: unfair dismissal continues


The Fair Work Commission (Commissioner Hunt) found an employer-drafted contract was unclear. If it was an effective fixed term contract the employee would have no grounds to bring an unfair dismisal claim.

However, the drafting was faulty:

“... it is incumbent on the drafter to be clear... I do not consider that the sentence, “Your employment will be full-time from 30 March 2015 to 1 April 2016” is sufficient to find that the employment was clearly stated to be for a fixed term ending on 1 April 2016...

"Clear words are necessary to satisfy the test that the employment was entered into by the parties to be for a fixed term, ending on 1 April 2016...

"I have no doubt on the evidence presently before me that it was in the mind of Act for Kids that the employment of Ms F was to be strictly for a fixed period of time, concluding on 1 April 2016. However, the execution of that desire was poor."

F v Act for Kids [2016] FWC 5052 (27 July 2016)

See also: Unfair dismissal appeals: it's an uphill battle

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