Details 

Created: 24 February 2020

The Full Bench has unanimously upheld an appeal in an unfair dismissal claim, suspended the operation of the decision at first instance and remitted the matter back to the Commission for further hearing and determination.

The appellant was dismissed by her employer following an exchange over the signing of a contract. The Commissioner at first instance found the dismissal to be justified on the basis that the appellant did not comply with a lawful instruction, used abusive language to challenge her employer and that her conduct was destructive of the necessary confidence between employer and employee.

On appeal, the appellant contended that Commissioner’s conclusions regarding the conflict in the evidence were in error. The appellant argued that the Commissioner wrongly refused to allow her to call a witness she had summonsed on the basis that no witness statement had been filed and that this would be prejudicial to the respondent. The appellant argued that she had been advised by the Commissioner’s Associate that the witness need not provide a written witness statement and could still be able to provide oral evidence at the hearing.

Chief Commissioner Scott and Commissioner Matthews, with whom Commissioner Emmanuel agreed, found that the witness ought to have been allowed to give evidence, given the conflict between the appellant’s and respondent’s evidence. Scott CC and Matthews C found there was a real possibility that the witness’s evidence would have made a difference to the findings of credibility and of the facts and upheld this ground of appeal.  

The appellant also argued that the Commissioner erred in accepting another witness’s characterisation of the appellant’s manner towards the respondent, when the witness gave a very different characterisation in cross-examination.

Scott CC and Matthews C upheld this ground of appeal and found that the evidence provided in the witness statement was severely undermined in cross-examination, and it was an error of the Commissioner to rely on it.

The Full Bench found that given the significance of these two grounds of appeal and the effect they may have on the Commissioner’s assessment of the evidence; they would remit the matter to the Commission for further hearing and determination.

The decision can be read here.