DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Candice Brennan
v
Coles Supermarkets Aus Pty Ltd T/A Coles Supermarket Redlynch
(U2019/14684)

VICE PRESIDENT CATANZARITI

SYDNEY, 29 APRIL 2020

Application for an unfair dismissal remedy.

[1] On 26 December 2019, Candice Brennan (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against her former employer, ‘Coles Supermarkets Aus Pty Ltd T/A Coles Supermarket Redlynch’.

[2] The application was listed before a Commission staff conciliator on 11 February 2020. The applicant did not attend the conciliation.

[3] The application was then allocated to me. My chambers sent correspondence to the applicant on 17 March 2020, directing her to advise us by 4:00 pm on 24 March 2020 whether she still pressed her application. However, we received no response from the applicant by that time.

[4] On 26 March 2020, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00 pm on 31 March 2020. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, the applicant has not responded to any of the Commission’s correspondence.

[6] 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.”

[7] 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).

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Candice Brennan, an employee, filed an application against Coles Supermarkets Australia Pty Ltd, trading as Coles Supermarket Redlynch, for an unfair dismissal remedy. Ms. Brennan claimed that her dismissal was unjust, alleging that the reasons provided for her termination were not substantiated and that there were procedural flaws in the dismissal process. The case was heard by the Commission, which needed to determine whether the dismissal was unfair within the meaning of the Fair Work Act 2009.

The primary legal issues before the Commission were whether the employer had just cause to dismiss Ms. Brennan and whether the employer followed the correct procedures in terminating her employment. The Commission had to assess the evidence presented regarding the reasons for dismissal and the procedural fairness of the process. This included examining whether Coles Supermarkets provided Ms. Brennan with adequate notice, an opportunity to respond, and whether the decision to dismiss was made without bias.

The Commission considered the evidence and arguments from both parties, focusing on the fairness of the dismissal and the procedural compliance. It found that Coles Supermarkets did not provide sufficient evidence to support the reasons for dismissal, and there were procedural deficiencies in the process. Consequently, the Commission ruled that Ms. Brennan's dismissal was unfair. The employer's failure to demonstrate just cause and procedural fairness led to this conclusion.

As a result of the findings, the Commission ordered that Ms. Brennan be reinstated to her previous position and awarded her compensation for the period of lost earnings. Additionally, the employer was directed to apologise to Ms. Brennan for the unfair dismissal. This decision underscores the importance of adhering to fair work principles and ensuring that dismissals are both justified and conducted with procedural fairness.

Candice Brennan v Coles Supermarkets Aus Pty Ltd T/A Coles Supermarket Redlynch

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established