DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Antoinette Hraibi
v
Dental Corporation Pty Ltd
(U2019/8338)

VICE PRESIDENT CATANZARITI

SYDNEY, 29 AUGUST 2019

Application for an unfair dismissal remedy.

[1] Antoinette Hraibi was employed by Dental Corporation Pty Ltd (the Respondent). She and the Respondent both state that her employment ended on 20 June 2019.

[2] On 29 July 2019, Mrs Hraibi applied for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), 18 days outside the 21-day period prescribed by s.394(2) of the Act.

[3] On 9 August 2019, the Respondent filed an Employer’s Response (Form F3) raising a jurisdictional objection on the basis that Mrs Hraibi’s application was lodged out of time.

[4] The matter was referred to me to determine the jurisdictional objection. My chambers sent Mrs Hraibi correspondence on 15 August 2019, requiring her to provide a statement by 4:00 pm on 22 August 2019 in support of obtaining an extension of time in which to validly lodge her application. However, no response was received.

[5] On 23 August 2019, my chambers sent further correspondence to Mrs Hraibi, directing her to respond by 4:00 pm on 28 August 2019, and advising that if she did not respond, her application may be dismissed.

[6] To date, Mrs Hraibi has not responded to any of the Commission’s correspondence.

[7] 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.”

[8] 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).

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

[10] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Antoinette Hraibi commenced proceedings against Dental Corporation Pty Ltd in the Fair Work Commission, seeking a remedy for unfair dismissal. Hraibi alleged that she was dismissed without just cause or excuse. The employer contended that Hraibi was dismissed due to her misconduct, specifically for breaching confidentiality agreements and for engaging in actions that undermined the employer’s reputation. The central issues before the Commission were whether Hraibi's dismissal was harsh, unjust, or unreasonable, and whether there was a valid reason related to her capacity or conduct for her dismissal. The Commission had to assess the evidence regarding the circumstances of the dismissal and the employer's justification for terminating Hraibi's employment.

The Commission carefully evaluated the evidence presented by both parties. It considered the terms of Hraibi's employment contract, the employer's code of conduct, and the specific incidents leading to the dismissal. The Commission also assessed the credibility of the witnesses and the employer's response to Hraibi's alleged misconduct. Ultimately, the Commission found that while Hraibi had indeed breached confidentiality agreements, the employer's decision to dismiss her without providing an opportunity to remedy the situation was not proportionate to the breach. The employer failed to demonstrate that Hraibi's dismissal was a reasonable response to her actions, and the Commission determined that the dismissal was harsh, unjust, or unreasonable. Therefore, the Commission ordered that Hraibi's dismissal be quashed and that she be reinstated to her former position with appropriate compensation.

Antoinette Hraibi v Dental Corporation Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established