Note: An appeal pursuant to s.604 (C2013/2693) was lodged against this decision - refer to Full Bench decision dated 14 August 2013 [[2013] FWCFB 5759] for result of appeal.
[2012] FWA 10828 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Miss Kelly McDonald
v
Il Migliore Pty Ltd T/A Il Migliore
(U2012/405)
COMMISSIONER RYAN |
MELBOURNE, 21 DECEMBER 2012 |
Termination of employment - dismissal harsh, unjust or unreasonable - compensation granted.
[1] Ms Kelly McDonald (the Applicant) made application to Fair Work Australia for unfair dismissal remedy against Il Migliore Pty Ltd (the Respondent). The application was made pursuant to section 394 of the Fair Work Act 2009 (the Act).
[2] I delivered an ex tempore decision in this matter in proceedings today and full reasons for decision were given orally on transcript in those proceedings. The following are my findings.
[3] Pursuant to s.396 the Tribunal is required to decide certain initial matters. I decide as follows:
(a) The application in this matter was made within the period required in s.394(2) of the Act.
(b) The Applicant is a person who was protected from unfair dismissal.
(c) The Respondent is not a Small Business Employer.
(d) The dismissal was not a case of genuine redundancy.
[4] Pursuant to s.385 a person has been unfairly dismissed if FWA is satisfied of certain matters. I am satisfied that:
(a) The Applicant has been dismissed within the meaning of s.386.
(b) Having taken into account the criteria set out in s.387 that the dismissal was harsh, unjust or unreasonable.
(c) The Small Business Fair Dismissal Code was not relevant in this matter
(d) The Dismissal was not a case of genuine redundancy.
[5] Pursuant to s.390 the Tribunal may grant a remedy where the Tribunal is satisfied that the Applicant is protected from unfair dismissal and that the Applicant has been unfairly dismissed.
[6] I am satisfied that reinstatement of the Applicant is inappropriate.
[7] I consider an order for payment of compensation is appropriate in all the circumstances.
[8] Having taken into account all the circumstances of the case including the matters specified in s.392 I determine that an amount of compensation of $15,851.00 be paid by the Respondent to the Applicant within 28 days.
[9] An order to reflect the decision in this matter will be issued separately.
COMMISSIONER
Appearances:
K. McDonald on her own behalf
R. Barker for the Respondent
Hearing details:
2012
Melbourne
October 12, 23
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