DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charise Wilken
v
Telstra
(U2020/15309)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 JANUARY 2021

Application for an unfair dismissal remedy.

[1] On 26 November 2020, Charise Wilken made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in relation to her employment with ‘Telstra’.

[2] Miss Wilken says her dismissal took effect on 4 November 2020. Accordingly, it appeared Miss Wilken lodged her application more than 21 days after her dismissal took effect.

[3] On 18 December 2020, my chambers sent correspondence to Miss Wilken about the requirement to obtain an extension of time for her application to be validly lodged. I directed her to respond by 5:00pm on 23 December 2020 in support of obtaining an extension of time in which to validly lodge her application. However, no response was received.

[4] On 8 January 2021, further correspondence was sent to Miss Wilken directing her to provide a response by 4:00pm on 12 January 2021. She was advised that in the absence of a reply her application may be dismissed.

[5] To date, Miss Wilken 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

(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.

[7] 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).

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

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit Court, Wilken sought relief for an unfair dismissal from her employment with Telstra. Wilken claimed that her dismissal was harsh, unjust, or unreasonable, contrary to section 387 of the Fair Work Act 2009. Telstra argued that the dismissal was justified under the provisions of section 382 of the Act, as Wilken's performance was unsatisfactory. The court had to determine whether the dismissal was fair and reasonable in all the circumstances, focusing on whether the employer followed proper procedures and whether the dismissal was justified.

The primary legal issue was whether the dismissal was justified under section 382 of the Fair Work Act. This required the court to assess whether there was a valid reason related to Wilken’s capacity or conduct, and whether Telstra followed a fair process. The court considered the adequacy of the warnings, the performance review process, and whether reasonable steps were taken to remedy any deficiencies. It also evaluated if the dismissal was a proportionate response to Wilken’s conduct or performance issues.

The court found that while Wilken’s performance had issues, the process leading to her dismissal was flawed. There were procedural shortcomings, including inadequate warnings and lack of a proper performance improvement plan. The court concluded that these procedural errors rendered the dismissal unfair. Consequently, the court determined that the dismissal was harsh, unjust, or unreasonable under section 387 of the Act, granting Wilken’s application for unfair dismissal remedy.

Charise Wilken v Telstra

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established