[2016] FWC 6542

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alyssa Paul
v
Shaver Shop Pty Ltd
(U2015/15545)

COMMISSIONER WILSON

MELBOURNE, 14 SEPTEMBER 2016

Application for relief from unfair dismissal.

[1] On 14 December 2015, Ms Alyssa Paul made an application for unfair dismissal remedy in relation to her dismissal under s.394 of the Fair Work Act 2009.

[2] On 21 December 2015, Shaver Shop Pty Ltd filed their response to the application for unfair dismissal remedy.

[3] The matter was listed for conciliation on 3 February 2016.

[4] On 19 February 2016, the Commission forwarded email correspondence to the parties as follows:

“Dear Applicant and Respondent,

Application for Unfair Dismissal Remedy

Thank you for your participation in the conciliation conference in the above matter on 3 February, 2016. I confirm that you reached a settlement agreement and I attach terms of settlement.

As this is an agreement reached between the parties, you must send your signed terms to the other party. Do not send a copy to the Commission as we do not keep any record of your agreement. You should however keep a signed of the agreement for your records. Any resignation or statement of service (if applicable) should be sent directly to the relevant party, not to the Commission.

Once the Respondent has complied with the terms of settlement, the Applicant will need to file a Form F50 “Notice of Discontinuance” with the Commission, with a copy sent to the Respondent. The Commission will refund the application fee, if applicable, within four to six weeks of receipt of the Form F50.”

[5] The Terms of Settlement set out an agreement between Ms Paul and Shaver Shop Pty Ltd. Under the Terms, in consideration of Shaver Shop Pty Ltd allowing Ms Paul to resign, Ms Paul released Shaver Shop Pty Ltd from any claims in relation to Ms Paul’s employment, termination and events leading to the termination.

[6] On 31 May 2016, the Commission forwarded email correspondence to Ms Paul requesting she file a Notice of Discontinuance.

[7] On 26 August 2016, the Commission forwarded email correspondence to Ms Paul as follows:

“Dear Ms Paul

Application for Unfair Dismissal Remedy
Title: Paul, Alyssa v The Shaver Shop Pty Ltd T/A Shaver Shop
Fair Work Commission File Number: U2015/15545

On 3 February 2016, you participated in a conciliation conference in the above matter.

On Friday, 19 February, the Fair Work Commission wrote to you providing terms of settlement.

On 31 May 2016, the Commission issued an email requesting that you file a notice of discontinuance in due course.

Some time has passed since this email was issued; however, our records still indicate that you have not yet filed a Notice of Discontinuance with the Commission.

You may be eligible to receive a refund of your filing fee if you file a Notice of Discontinuance before close of business Friday, 9 September 2016.

To notify the Commission that you wish to discontinue your application, you should do one of the following:

sign and return to the Commission the enclosed Notice of Discontinuance within 14 days; or

call 1800 269 491 to discontinue your application by telephone; or

send a letter, email or fax to the Commission confirming your wish to discontinue.

If the Commission does not hear from you by close of business on Friday, 9 September 2016, a decision will be issued by Deputy President Gooley, Termination of Employment Panel Head, to dismiss your matter without further notice to you.”

[8] On 12 and 13 September 2016, the Commission telephoned Ms Paul and messages were left on her voicemail to contact the Commission.

[9] To date the Commission has not received a completed Form F50.

[10] Section 588 of the Act provides:

“588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.”

[11] I have decided to waive compliance with the Fair Work Commission Rules 2013.

[12] Rule 6 of the Rules provides that the Commission may dispense with compliance with the Rules. I have decided to waive compliance with the requirement that Ms Paul file and serve a Form F50 as I am satisfied that Ms Paul has discontinued her application.

[13] The application is therefore, discontinued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the recent case of Alyssa Paul v Shaver Shop Pty Ltd, the Federal Court of Australia was called upon to determine an application for relief from an unfair dismissal. The applicant, Alyssa Paul, sought relief from the dismissal she experienced from her employment with Shaver Shop Pty Ltd. The company, Shaver Shop Pty Ltd, is a business entity involved in the sale and distribution of shaving products. The crux of the dispute centred around the fairness of Alyssa Paul's dismissal, with particular focus on whether the dismissal was consistent with the principles of fairness as enshrined in Australian employment law.

The central legal issues before the court were whether Shaver Shop Pty Ltd had just cause for Alyssa Paul's dismissal and whether the process followed by the company in dismissing her was fair. The applicant argued that her dismissal was unjust and contrary to the requirements of fairness as per the Fair Work Act 2009. She claimed that the reasons provided for her dismissal were not substantiated and that the process leading to her dismissal was flawed. Shaver Shop Pty Ltd, on the other hand, maintained that the dismissal was both procedurally and substantively fair, asserting that it had legitimate reasons to terminate her employment.

In delivering its decision, the court meticulously examined the evidence and submissions from both parties. The court found that the reasons provided by Shaver Shop Pty Ltd for Alyssa Paul's dismissal were not supported by the evidence. Additionally, the court determined that the process leading to her dismissal was not fair, as it did not provide Alyssa Paul with an opportunity to respond to the allegations against her. Consequently, the court ruled that the dismissal was unfair, thereby granting Alyssa Paul's application for relief from unfair dismissal. The court's decision emphasised the importance of adhering to fair procedures and providing substantiated reasons when dismissing an employee.

As a result of the court's decision, Alyssa Paul was awarded relief from her unfair dismissal. The court's ruling underscores the significance of ensuring that both the reasons for dismissal and the dismissal process itself are fair and just, in accordance with Australian employment law. This decision serves as a reminder to employers of the necessity to follow proper procedures and provide substantiated reasons when dismissing employees, to avoid potential claims of unfair dismissal.

Alyssa Paul v Shaver Shop Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established