The Commission has dismissed an appeal brought by the owners of a massage business, finding that it was open to the Senior Commissioner at first instance to determine that the employee had been dismissed, and did not resign.

Background

The appellant ran a massage business, at which the respondent was employed as a massage therapist. Following a dispute, the respondent left the workplace. The respondent did not return to work the following day on medical grounds, and provided the appellant with a medical certificate.

In subsequent text messages between the appellant and respondent, the respondent understood that she had been dismissed. The respondent made an unfair dismissal application to the Commission.

The learned Senior Commissioner found that the respondent had been unfairly dismissed, and ordered the appellant to pay compensation.

The reasons for decision at first instance were corrected by corrigendum soon after issuing, mainly correcting various dates and times.

Contentions

The appellant brought an appeal against the first instance decision, and listed 18 grounds of appeal. Broadly, the grounds of appeal contended that the Senior Commissioner mistook the facts at first instance; that translations of text messages used as evidence were not accurate; and that it should have been concluded that the respondent resigned. The appellant further contended that the assessment of compensation was arbitrary.

Findings

The Full Bench noted that the grounds of appeal did not set out the particulars that were relied upon by the appellant to show how the Senior Commissioner’s decision was against the evidence and did not set out specific reasons why the Senior Commissioner erred in law.

The Full Bench noted that the errors in the reasons for decision that were later corrected by corrigendum referred to by the appellant in ground one, mainly related to dates and times. The Full Bench found that the corrections did not materially affect the Commission’s decision.

The Full Bench found that the Senior Commissioner was alert to the nuance of language in considering text messages that had been translated, and further noted that at no time in the first instance, did the appellant raise issues with the translations.

The Full Bench considered that the Senior Commissioner did not err in considering the behaviour of the respondent, including the provision of a medical certificate, when finding that the respondent did not intend to resign.

The Full Bench considered that the Senior Commissioned had properly applied the principles relating to the award of compensation to the facts and that no error was demonstrated in her award of $1,500 compensation for injury.

The Full Bench found no appeal grounds were made out and dismissed the appeal.

The decision can be read here.