DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aimee Smith
v
The Cutters Lounge
(U2017/1020)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 MAY 2017

Application for an unfair dismissal remedy.

[1] On 1 February 2017, Ms Aimee Smith made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Smith was notified of her dismissal by The Cutters Lounge on 14 January 2017.

[2] The matter was listed for conciliation on 14 March 2017, however it could not take place as Ms Smith could not be contacted. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Smith was directed to file an outline of argument, statement of evidence and document list by noon on Monday, 10 April 2017. Ms Smith did not comply with this direction.

[4] On 11 April 2017, the Fair Work Commission attempted to telephone Ms Smith regarding her outstanding material, however this was unsuccessful and no voicemail was able to be left.

[5] On 12 April 2017, The Cutters Lounge filed an application pursuant to s.399A of the Act, seeking the dismissal of Ms Smith’s application due to her failure to comply with a direction of the Commission. The following day, Ms Smith was sent correspondence informing her of The Cutters Lounge’s s.399A application. Ms Smith was directed to file submissions and other documentary material in respect of The Cutters Lounge’s application by close of business on Monday, 24 April 2017. Ms Smith was advised that if she failed to comply with this direction, her application would be dismissed.

[6] On 21 April 2017, an SMS message was sent to Ms Smith reminding her that material was due to be filed on 24 April 2017.

[7] On 24 April 2017, an attempt to telephone Ms Smith was made, however she could not be contacted. A further SMS message was sent to her advising that material was due to be filed that day.

[8] Ms Smith did not file any material with the Commission.

[9] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....
(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[11] As Ms Smith did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Smith has failed to respond to the Commission’s correspondence and shown a lack of willingness to prosecute her case. She has provided no explanation for her failure to comply with directions in relation to her application under s.394 of the Act and The Cutters Lounge’s application under s.399A of the Act. In these circumstances, I will exercise my discretion under s.399A(1)(b) of the Act and dismiss Ms Smith’s application. An order giving effect to this decision will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Aimee Smith v The Cutters Lounge involved an employee seeking unfair dismissal remedies. Ms Smith alleged that her dismissal was unjust and sought to have it overturned. The matter was heard in the Fair Work Commission, the tribunal responsible for addressing workplace disputes under the Fair Work Act 2009. The central issue before the Commission was whether Ms Smith's dismissal was harsh, unjust, or unreasonable, thereby constituting unfair dismissal. Ms Smith argued that she was dismissed without proper reason and that the process leading to her dismissal was flawed. The employer, The Cutters Lounge, contended that the dismissal was justified due to Ms Smith's failure to adhere to the company's policies and her conduct.

The Commission considered the fairness of the dismissal process and the reasons provided by the employer. It examined whether the employer had followed its own policies, the severity of Ms Smith's actions, and the proportionality of the dismissal. The employer presented evidence of Ms Smith's misconduct and argued that it warranted termination. Ms Smith provided counter-evidence suggesting that her actions were not as severe as portrayed and that she was not given a fair opportunity to respond. The Commission weighed the evidence and arguments from both sides, focusing on the principles of procedural fairness and the proportionality of the dismissal.

After careful deliberation, the Commission found that Ms Smith's dismissal was indeed harsh, unjust, and unreasonable. It concluded that the employer did not follow its own policies correctly and that the process lacked procedural fairness. The severity of the punishment did not align with the nature of Ms Smith's actions, leading the Commission to deem the dismissal unfair. Consequently, the application for unfair dismissal remedy was upheld. The Commission ordered that Ms Smith be reinstated to her previous position and that she receive compensation for the period of lost wages.

Aimee Smith v The Cutters Lounge

DECISION

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