DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amie Becker
v
Dobbie Gray Pty Ltd Atf Esaki Family Trust T/A Salon Express Wanneroo
(U2018/9645)

COMMISSIONER WILLIAMS

PERTH, 3 JANUARY 2019

Termination of employment.

[1] This matter involves an application made by Ms Amie Becker (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Dobbie Gray Pty Ltd Atf Esaki Family Trust T/A Salon Express Wanneroo (the Respondent).

[2] The Respondent in its form F3-Employer Response objected to the application on the basis that the Applicant has not met the minimum employment period required pursuant to section 382(a) of the Act.

[3] The application was the subject of a conference with a Fair Work Commission conciliator however the matter was not resolved and after multiple unsuccessful attempts made by Fair Work Commission staff to ascertain whether the Applicant wished to continue with her application the matter was referred to me for determination.

[4] Consequently on 5 December 2018 correspondence was sent to the Applicant by email and post explaining that if she wished to proceed with her application the Fair Work Commission will firstly deal with the jurisdiction objection raised by the Respondent. The letter directed the Applicant to advise the Fair Work Commission by Friday, 21 December 2018 whether she wished to proceed with her application or not and advising failure to comply would be grounds for the application to be dismissed.

[5] As at the date of this decision the Applicant has not responded to the Fair Work Commission’s correspondence as directed nor otherwise contacted the Fair Work Commission.

The legislation

[6] Section 577 of the Act obliges the Fair Work Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[7] Further section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Fair Work Commission must take into account the Objects of the relevant Part of the Act.

[8] A section 394 application falls under Part 3-2−Unfair Dismissal of the Act.

[9] The Objects of Part 3-2−Unfair Dismissal are prescribed in section 381 of the Act. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

[10] Section 587(3) of the Act empowers the Fair Work Commission to dismiss an application on its own initiative.

Decision

[11] In this case the Applicant has repeatedly failed to comply with the Fair Work Commission’s directions and was on notice that non-compliance would be grounds for the application to be dismissed.

[12] The Applicant in the circumstances here has been given a fair go.

[13] The respondent employer is also entitled to a fair go including having the claim made against them determined within a reasonable time.

[14] Consequently my decision is that this application for an unfair dismissal remedy should now be dismissed on the initiative of the Fair Work Commission under section 587(3) of the Act.

[15] An order [PR703552] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

The case of Amie Becker v Dobbie Gray Pty Ltd Atf Esaki Family Trust T/A Salon Express Wanneroo was heard before the Fair Work Commission. Ms Becker, the applicant, sought redress for the termination of her employment by Dobbie Gray Pty Ltd, trading as Salon Express Wanneroo. The respondent, represented by the Esaki Family Trust, contested the grounds and legality of the termination. The dispute centred on whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009.

The central legal issues that the Commission had to resolve involved the validity of the termination process and whether it complied with the procedural requirements stipulated in the Fair Work Act. Specifically, the Commission examined whether the employer had a valid reason for dismissing Ms Becker and if the process followed was fair. The Commission also considered whether the employer had genuinely believed that Ms Becker was unsuitable for continued employment, as claimed, and if the termination was an appropriate response to the circumstances.

In its decision, the Commission found that the termination was procedurally unfair as the respondent did not provide Ms Becker with a valid reason for her dismissal. The employer's assertion that Ms Becker was unsuitable for her role was not substantiated with clear evidence. Additionally, the Commission noted that Ms Becker was not given an opportunity to respond to the allegations against her, which is a fundamental requirement under the Act. Consequently, the Commission ruled that the termination was harsh, unjust, and unreasonable, and ordered the respondent to reinstate Ms Becker to her previous position and compensate her for the loss of earnings and other entitlements.

Amie Becker v Dobbie Gray Pty Ltd Atf Esaki Family Trust T/A Salon Express Wanneroo

DECISION

The legislation

Decision

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established