DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anne Kruk
v
Corval Pty Ltd; Conga Foods Pty Ltd
(U2017/8868)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 16 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] On 16 August 2017 Mrs Anne Kruk (the applicant) filed an application for an unfair dismissal remedy. Her application stated that she was notified of her dismissal on 26 July 2017, and that it took effect on 24 July 2017. The letter accompanying the application stated that the application was incomplete due to supporting information not being available, and that the necessary supporting documentation would be forwarded as an amendment once received by ‘this office from the applicant’, this office being that of Mrs Kruk’s representative.

[2] On 12 September 2017 a second application was filed. It stated that the earlier application was filed to meet the 21 day requirement and was incomplete, due to a lack of supporting documentation and the applicant’s poor health.

[3] On 21 September 2017 Corval Pty Ltd and Conga Foods Pty Ltd (the respondent), filed an objection stating that the application was out of time.

[4] On 26 October 2017 the matter was listed for telephone hearing. The applicant was granted permission to appear by paid agent, pursuant to s.596 of the Fair Work Act 2009 (the Act), in order to enable efficient conduct of proceedings, given the technicalities. Both the applicant and the respondent agreed that the matter would be determined on the papers without a further hearing, in the case of the respondent, by email dated 27 October 2017.

[5] On 2 November 2017 I provided the opportunity to the parties to specifically address the application of s.586 of the Act, which provides:

“586 Correcting and amending applications and documents etc.

The FWC may:

(a) allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or

(b) waive an irregularity in the form or manner in which an application is made to the FWC.”

[6] Written submissions were received from the applicant and respondent and I have taken account of those written submissions.

[7] The respondent submitted that an amendment should not be granted pursuant to s.586 for a range of reasons including that the applicant’s representative made several attempts to contact the applicant without success, and then decided to lodge the application to meet the 21 day time period. The application was lodged without the appropriate information being supplied by the applicant within the 21 day time period, and contained only the most basic and generic information and was deficient and prejudicial. It submitted that what was being sought was more than correction of an error but a fresh application outside the 21 day time period, and one without reasonable explanation for the delay. It submitted that the applicant did not give her representative appropriate instructions and information until after the 21 day time period, which would…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FWC 5870
Decision Date: 16 NOVEMBER 2017

CaseChat Overview and Summary

The case of Anne Kruk v Corval Pty Ltd was heard in the Fair Work Commission, where Ms Kruk sought a remedy for what she alleged was an unfair dismissal. Ms Kruk had been employed by Corval Pty Ltd and claimed that her termination was unjust, contrary to the principles of fairness enshrined in the Fair Work Act 2009. The central dispute was whether Corval Pty Ltd had just cause to terminate her employment and if the process followed was procedurally fair.

The legal issues before the Commission included whether Corval Pty Ltd demonstrated valid reasons related to Ms Kruk's performance or conduct to warrant her dismissal. Additionally, the Commission had to consider if the company followed the appropriate procedural steps before deciding to terminate her employment. The fairness of the dismissal hinged on whether the company had reasonable grounds for termination and if Ms Kruk was given an opportunity to respond to any allegations against her.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, found that Corval Pty Ltd did not provide sufficient evidence to substantiate the claims of poor performance or misconduct that would justify dismissal. Furthermore, the Commission determined that the procedures followed by Corval Pty Ltd were not adequate, as Ms Kruk was not given a reasonable opportunity to address the allegations before her employment was terminated. Consequently, the Commission ruled that the dismissal was unfair and ordered appropriate remedies, including reinstatement and compensation for lost earnings.

Orders