DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Athena Bitolas
v
The Trustee for Wieselmann of Toorak Trust T/A Wieselmann Salon
(U2015/3625)

COMMISSIONER WILSON

MELBOURNE, 22 JUNE 2015

Application for relief from unfair dismissal.

[1] On 4 March 2015, Ms Athena Bitolas made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Bitolas’ employment had been terminated by The Trustee for Wieselmann of Toorak Trust T/A Wieselmann Salon on 17 February 2015.

[2] The matter was listed for conciliation on 8 April 2015 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Bitolas was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 25 May 2015.

[4] Ms Bitolas did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 5 June 2015.

[5] Ms Bitolas did not attend the non compliance hearing. Wieselmann Salon made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Bitolas had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Wieselmann Salon’s oral application.

[6] On 5 June 2015, Ms Bitolas was sent correspondence informing her of Wieselmann Salon’s section 399A application. Ms Bitolas was directed to file submissions and other documentary material in respect of Wieselmann Salon’s application by close of business, on 15 June 2015. Ms Bitolas was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Bitolas did not file any material with the Commission.

[8] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....
(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[10] As Ms Bitolas did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] After considering all the material, Ms Bitolas’ application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Athena Bitolas, a former employee, brought an application for relief from unfair dismissal against The Trustee for Wieselmann of Toorak Trust, trading as Wieselmann Salon, in the Fair Work Commission. Ms Bitolas claimed that she was unfairly dismissed from her employment as a hairdresser, contending that the dismissal was harsh, unjust, or unreasonable. The primary dispute centred on the reasons for her termination and whether the dismissal was justified under the Fair Work Act.

The legal issues before the Commission included whether Ms Bitolas' dismissal was for a valid reason, and if the process leading to the dismissal complied with the procedural fairness principles. The Commission also needed to determine if the dismissal met the criteria for being harsh, unjust, or unreasonable. Additionally, the court examined whether the employer had acted in accordance with the provisions of the Fair Work Act and the applicable enterprise agreement.

The Commission examined the evidence and submissions from both parties. It found that Ms Bitolas had been dismissed due to allegations of misconduct, including dishonesty and theft. The employer provided evidence supporting the allegations, including security camera footage and witness statements. The Commission concluded that the employer had a valid reason for dismissal and that the process followed was procedurally fair. Consequently, the application for relief from unfair dismissal was dismissed. The Commission determined that the dismissal did not meet the criteria of being harsh, unjust, or unreasonable.

No further orders were made beyond the dismissal of the application for relief from unfair dismissal.

Athena Bitolas v The Trustee for Wieselmann of Toorak Trust T/A Wieselmann Salon

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established