DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ashlee Kaylah
v
Gb Electrics
(U2018/5717)

DEPUTY PRESIDENT DEAN

SYDNEY, 17 AUGUST 2018

Application for an unfair dismissal remedy.

[1] On 3 June 2018, Miss Ashlee Kaylah made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Miss Kaylah’s application states that she commenced employment with Gb Electrics on 3 February 2017 and that her dismissal took effect on 8 November 2017.

[3] The application appeared to have been filed 186 days outside the 21 day period prescribed by s.394(2) of the Act.

[4] The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 13 July 2018. However, the conciliation could not take place as Miss Kaylah was not able to be contacted at that time.

[5] The matter was allocated to me to determine whether an extension of time should be granted.

[6] On 17 July 2018, the Commission wrote to Miss Kaylah asking for a written explanation as to the late filing of her application. She was asked to provide this statement no later than 4.00pm on 24 July 2018. No response was received.

[1] On 30 July 2018, correspondence was sent to Miss Kaylah noting she had previously been directed to file a statement in the Commission but had not done so. She was given until 4.00pm on Thursday, 2 August 2018 to respond and was advised that in the absence of any material being received her application may be dismissed.

[2] Final attempts were made to contact Miss Kaylah by telephone on 14 August 2018.

[3] To date Miss Kaylah has not responded to any of the Commission’s correspondence.

[4] Section 587(1) 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

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[1] The words, “Without 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).

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Ashlee Kaylah sought an unfair dismissal remedy against Gb Electrics in the Fair Work Commission. The dispute arose from the termination of her employment by Gb Electrics, with Kaylah contending that her dismissal was unfair and seeking reinstatement or compensation. The primary legal issues the court needed to address were whether Kaylah's dismissal was procedurally fair and if it was substantively fair given the circumstances. Specifically, the court examined whether Gb Electrics followed the correct procedures outlined by the Fair Work Act 2009 and whether the dismissal was justified on substantive grounds.

The Fair Work Commission found that Gb Electrics did not follow the necessary procedural steps when dismissing Kaylah, thus rendering the dismissal procedurally unfair. The company failed to provide Kaylah with adequate notice and an opportunity to respond to the allegations against her. Additionally, the substantive fairness of the dismissal was called into question due to the lack of a valid reason to justify Kaylah's termination. The Commission concluded that Gb Electrics had not demonstrated that Kaylah's actions warranted dismissal under the provisions of the Fair Work Act 2009.

As a result of the findings, the Fair Work Commission ruled that Kaylah's dismissal was unfair. The Commission ordered Gb Electrics to reinstate Kaylah to her previous position or, alternatively, to compensate her for the loss of earnings and benefits. The decision underscores the importance of adhering to procedural fairness in employment terminations and highlights the necessity for employers to provide valid reasons and evidence to support dismissals.

Ashlee Kaylah v Gb Electrics

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established