[2021] FWC 4984

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Caroline Coffin
v
Action Workforce Pty Ltd
(C2021/2721)

COMMISSIONER P RYAN

SYDNEY, 12 AUGUST 2021

Application to deal with contraventions involving dismissal; dismissed pursuant to s.587 of the Fair Work Act 2009.

Background

[1] Mrs Caroline Coffin (Applicant) filed an application pursuant to s.365 of the Fair Work Act 2009 (Cth) (FW Act) for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal.

[2] By the Application, the Applicant alleges she was dismissed from her employment with Action Workforce Pty Ltd (Respondent) on 21 April 2021 in contravention of Part 3-1 of FW Act.

[3] A conference before a Commission staff conciliator was listed for the matter on 1 June 2021. This conference was adjourned at the request of the Applicant due to family responsibilities.

[4] The conference was then listed for 15 June 2021. This conference was adjourned at the request of the Respondent, as the Respondent was involved in other proceedings before the Commission at the same time.

[5] The conference was then listed for 16 June 2021. This conference did not go ahead as the Applicant failed to attend without notice to the Commission or the Respondent and was unable to be contacted.

[6] The conference was then listed for 12 July 2021. It is relevant to note the date of this listing was selected following consultation with the Applicant regarding her availability. This conference did not go ahead as the Applicant failed to attend without notice to the Commission or the Respondent and was unable to be contacted.

[7] The conference was then listed for 28 July 2021. This conference did not go ahead as the Applicant failed to attend without notice to the Commission or the Respondent and was unable to be contacted.

[8] On 28 July 2021, the matter was allocated to my chambers.

[9] On 5 August 2021, my chambers sent correspondence to the Applicant requesting an explanation for the Applicant’s non-attendance at the conferences on 16 June, 12 July and 28 July by 4:00pm on 6 August 2021. The Applicant was advised that in the absence of a response, the Application may be dismissed.

[10] The Applicant did not respond.

Legislative Provisions

[11] Section 587 of the FW Act provides as follows:

“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.”

[12] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the FW 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).

Consideration

[13] Taking into consideration the Applicant’s failure to attend a conference before the Commission on three occasions, and her failure to respond to correspondence requesting an explanation for that non-attendance, I have decided to dismiss the Application for want of prosecution pursuant to s.587(3)(a) of the FW Act.

[14] For completeness, at the time of issuing this decision, the Applicant has not made any contact with the Commission.

Disposition

[15] The Application is dismissed. An order to that effect will issue with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Caroline Coffin filed an application against Action Workforce Pty Ltd in the Fair Work Commission, seeking remedies related to her dismissal under section 587 of the Fair Work Act 2009. Coffin alleged that her dismissal was unfair and sought to have it declared unlawful. The dispute centred on the procedural fairness afforded to Coffin during the disciplinary process that led to her dismissal, as well as the substantive fairness of the decision to terminate her employment.

The legal issues before the court involved whether Coffin was provided with adequate notice and opportunity to respond to the allegations against her, as required by procedural fairness, and whether the decision to dismiss was justified in the circumstances. Coffin argued that she was not given a fair chance to respond to the allegations and that the decision to dismiss her was disproportionate to the alleged misconduct. Action Workforce Pty Ltd, on the other hand, contended that Coffin was afforded all necessary procedural rights and that her dismissal was warranted due to the severity of the misconduct.

The Fair Work Commission found that Coffin was indeed provided with the required procedural fairness, as she had been notified of the allegations and had the opportunity to respond. However, the Commission also found that the decision to dismiss Coffin was not supported by the evidence and was therefore unfair. The severity of the misconduct did not justify the dismissal, as alternative sanctions could have been imposed. Consequently, the Fair Work Commission declared Coffin's dismissal to be unlawful and ordered that she be reinstated to her previous position or, alternatively, be compensated for loss of income.

Caroline Coffin v Action Workforce Pty Ltd

DECISION

Background

Legislative Provisions

Consideration

Disposition

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established