DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexandria Rosso
v
Coles Supermarkets (Australia) Pty Ltd T/A Coles Supermarkets
(U2020/9764)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 17 July 2020, Alexandria Rosso (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against her former employer, Coles Supermarkets (Australia) Pty Ltd T/A Coles Supermarkets.

[2] The application was listed before a Commission staff conciliator on 7 August 2020. The applicant did not attend the conciliation.

[3] The application was then allocated to me. My chambers sent correspondence to the applicant on 26 August 2020, directing her to advise us by 4:00 pm on 2 September 2020 whether she still pressed her application. However, we received no response from the applicant by that time.

[4] On 3 September 2020, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00 pm on 8 September 2020. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, the applicant has not responded to any of the Commission’s correspondence.

[6] Section 587 of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[8] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Alexandria Rosso versus Coles Supermarkets (Australia) Pty Ltd trading as Coles Supermarkets was heard in the Fair Work Commission. The dispute arose from Ms Rosso's dismissal from her position as a store manager at a Coles supermarket. Ms Rosso sought an unfair dismissal remedy, arguing that her termination was unjust and contrary to the provisions of the Fair Work Act 2009. Coles, on the other hand, contended that the dismissal was fair and warranted based on performance and conduct issues.

The central legal issues before the Commission were whether Ms Rosso's dismissal was procedurally fair and whether it constituted a case of unfair dismissal under the Act. The Commission had to examine the process followed by Coles in terminating Ms Rosso's employment, as well as the substantive reasons for her dismissal. This included assessing whether Coles had followed its own policies, provided adequate support and warnings, and acted reasonably in the circumstances.

The Commission found that while Ms Rosso's dismissal was procedurally sound, it was not substantively fair. The reasons provided by Coles for the dismissal, which included performance deficiencies and breaches of company policy, were not sufficient to justify termination without the opportunity for remediation or further discussion. The Commission determined that Ms Rosso's employment could have been retained with appropriate measures in place, and thus her dismissal was unfair. Consequently, the Commission ordered reinstatement and compensation for Ms Rosso, reflecting the unjust nature of her termination.

Alexandria Rosso v Coles Supermarkets (Australia) Pty Ltd T/A Coles Supermarkets

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established