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Employer loses same unfair dismissal claim twice

Adam Zuchetti
Adam Zuchetti
28 March 2019 2 minute readShare
Fair Work Commission

A marketing analytics firm has lost an unfair dismissal claim for a second time, after the original decision was successfully appealed and a retrial ordered. But the payout it must make to the former employee has been slashed.

In a controversial ruling in July last year, TIOBE was ordered to pay $70,000 as compensation to former employee Cathy (Yaqin) Chen, who was deemed to have been unfairly dismissed, despite the business claiming to have issued multiple performance warnings.

Original unfair dismissal claim

At the time, the company’s managing director, Keira Czarnota, told the Fair Work Commission that he had issued numerous warnings to Ms Chen about her performance, and that Ms Chen had ignored instructions not to work on Sundays.

But the commission ruled that any such warnings have been given verbally during informal meetings, and “were not supported with any record or detail”, and therefore in the absence of formal warnings, the termination of Ms Chen’s employment was deemed to be unfair.


TIOBE lodged an appeal the following month, arguing, among other things, that the commission had failed to account for the fact that it is a small business.

It argued that “the Commissioner erred in law by failing to take into account or failing to give any, or any sufficient weight, to the degree to which the absence of dedicated human resource management specialists or expertise in the Appellant’s enterprise would be likely to impact on the procedures followed in effecting the applicant’s dismissal (in accordance with section 387(g) of the Act).”

The business won that appeal, with the decision in favour of Ms Chen overturned in September 2018.

That verdict was on the grounds that the commissioner had made an error of judgment in determining whether the commission had “made an error in not first considering whether the dismissal was consistent with the [Small Business Fair Dismissal] Code before turning to deal with whether the dismissal was unfair”.

“The Commissioner’s failure to decide whether the dismissal was consistent with the Code before considering the merits of the application was an error. In the circumstances of this matter, it is at least arguable that the error could have made a difference to the outcome, though we express no concluded view on the merits of the Code argument advanced by TIOBE,” the appeals panel said.

“We are satisfied that it is in the public interest to grant permission to appeal. We grant permission to appeal, uphold the appeal on the basis of the error identified, and quash the Decision and Order.”

As a result, the original unfair dismissal claim was ordered to be re-heard.

Original claim gets heard a second time

At the second hearing, the commissioner looked into this point and found that Ms Chen’s dismissal “was not consistent with the Code and it was not a genuine redundancy”, adding that “there is no dispute, however, that Ms Chen was dismissed”.

This finding meant that the Fair Work Commission was able to hear the claim and that TIOBE was not exempt under the Small Business Fair Dismissal Code.

That then meant that the previously supplied evidence was reviewed, which culminated in the same finding as the original ruling: that Ms Chen had been unfairly dismissed.

“I have not found a valid reason for the dismissal of Ms Chen. For that and the other reasons given above, I am satisfied that the dismissal of Ms Chen was unjust and unreasonable,” the commissioner said.

“I am therefore satisfied that Ms Chen was unfairly dismissed.”

However, the payout ordered was slashed from the original $70,000, with TIOBE to pay Ms Chen $13,461. The commission said that the business could make the payments in three equal monthly instalments, to be completed by 14 June 2019.

TIOBE’s Mr Czarnota has been approached for comment.

The full judgment can be found on the Fair Work Commission’s website.

Employer loses same unfair dismissal claim twice
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Adam Zuchetti
Adam Zuchetti

Adam Zuchetti is the former editor of MyBusiness and a senior freelance media professional, specialising in the fields of business, personal finance and property. In 2020, he also embarked on his own business journey – inspired in part by the entrepreneurs and founders he had met through his journalistic work – with the launch of customised pet gifting and subscription service Paws N’ All.

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