DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Chelsi Uati
v
Birchan Pty Ltd T/A Vics Meat
(U2020/9688)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 15 July 2020, Chelsi Uati (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, Birchan Pty Ltd T/A Vics Meat.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 18 August 2020. The applicant did not attend the conciliation.

[3] The application was then allocated to me. My chambers sent correspondence to the applicant on 27 August 2020, directing her to advise us by 4:00 pm on 3 September 2020 whether she still pressed her application. However, we received no response from the applicant by that time.

[4] On 4 September 2020, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00 pm on 9 September 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

Chelsi Uati lodged an application for unfair dismissal remedy against Birchan Pty Ltd, trading as Vics Meat, before the Fair Work Commission. Uati alleged that her dismissal was unjust due to a series of events that transpired at the workplace, including an incident of alleged bullying and a subsequent failure by the employer to follow proper disciplinary procedures. The Fair Work Commission was tasked with determining whether the dismissal was unfair under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the employer's decision to dismiss Uati was justified, procedurally fair, and in accordance with the principles of fairness. This involved assessing the employer’s adherence to the established disciplinary procedures, the validity of the reasons provided for dismissal, and the proportionality of the disciplinary action taken. The Commission also considered the employer's response to the allegations of bullying and whether the employer had taken reasonable steps to address these concerns.

The Commission examined the evidence presented by both parties and found that the employer did not follow its own disciplinary procedures correctly. It was noted that there was insufficient investigation and inadequate opportunity for Uati to respond to the allegations against her. Furthermore, the employer failed to address the bullying issue adequately, which contributed to the unsafe work environment. Consequently, the Fair Work Commission determined that Uati's dismissal was unfair, and her application was successful.

The Fair Work Commission ordered that Uati be reinstated to her position and compensated for the loss of wages and benefits from the date of dismissal until the date of reinstatement. Additionally, the employer was directed to review and amend its disciplinary procedures to ensure compliance with fair work principles in future disciplinary actions.

Chelsi Uati v Birchan Pty Ltd T/A Vics Meat

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established