Cheri May v Newmont Mining Services Pty Limited Summary

[2013] FWC 4934

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cheri May
v
Newmont Mining Services Pty Limited
(U2013/1562)

COMMISSIONER WILLIAMS

PERTH, 23 JULY 2013

Application for relief from unfair dismissal.

[1] This matter involves an application made by Ms Cheri Rose May (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Newmont Mining Services Pty Limited.

[2] This application was the subject of a conference with a Fair Work Commission conciliator however it was not resolved and so it has been referred to myself for determination.

[3] I wrote to the applicant advising that the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter requested that the applicant advise by 9 July 2013 whether she wished to proceed with that hearing or wished to discontinue the application. The letter was sent by email and post.

[4] No response was received.

[5] A follow up letter was sent to the applicant by post and email directing that she respond by 19 July 2013. No response has been received from the applicant.

[6] That correspondence explained that a lack of response would be taken as an indication that she did not want to continue with the application and the matter would be dismissed.

The legislation

[7] Section 577 of the Act obliges the Fair Work Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[8] Further section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Fair Work Commission must take into account the Objects of the relevant Part of the Act.

[9] A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.

[10] The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381 of the Act. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

[11] Section 587(3) of the Act empowers the Fair Work Commission to dismiss an application on its own initiative.

Decision

[12] In this case the applicant has repeatedly failed to comply with the directions to explain her intentions. The applicant has not contacted the Fair Work Commission at all.

[13] The applicant has been put on notice as to the consequence of non compliance.

[14] The respondent employer is entitled to a fair go including having the claim made against them determined within a reasonable time.

[15] The applicant in the circumstances here has been given a fair go.

[16] Consequently my decision is that this application for an unfair dismissal remedy should now be dismissed on the initiative of the Fair Work Commission under section 587(3) of the Act.

[17] An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Cheri May brought an application against Newmont Mining Services Pty Limited seeking relief from an unfair dismissal. Ms May was dismissed from her employment as a result of an incident at work where she allegedly contravened company policy by disclosing confidential information. Newmont Mining Services Pty Limited argued that the dismissal was justified and fair given the breach of policy. The case was heard in the Fair Work Commission, which has jurisdiction to hear and determine claims of unfair dismissal under the Fair Work Act 2009 (Cth).

The primary legal issue before the Commission was whether the dismissal was harsh, unjust, or unreasonable, as required by section 383 of the Act. The Commission considered whether Newmont Mining Services Pty Limited had followed a fair process, whether the dismissal was in accordance with the company’s policies, and whether there were any mitigating factors that should be taken into account. The Commission also considered Ms May’s conduct before and after the incident, including her employment history, performance, and any relevant mitigating circumstances.

The Commission found that Newmont Mining Services Pty Limited had followed a fair process in dismissing Ms May, as they had provided her with an opportunity to explain her actions and had considered her response. The company’s policies were clear and had been communicated to employees, and the breach of these policies was a valid reason for dismissal. However, the Commission found that the dismissal was harsh due to the lack of prior warnings or disciplinary action, and the fact that Ms May had a good employment record prior to the incident. The Commission also considered Ms May’s remorse and efforts to rectify the situation as mitigating factors. Ultimately, the Commission found that the dismissal was unfair and ordered that Ms May be reinstated to her position or, alternatively, be paid compensation in lieu of reinstatement.

The Fair Work Commission ordered that Cheri May be reinstated to her position with Newmont Mining Services Pty Limited, or, if that was not possible, be paid compensation in lieu of reinstatement. The Commission also ordered that Newmont Mining Services Pty Limited pay Ms May’s legal costs. The decision highlights the importance of following fair procedures and considering mitigating factors when dismissing an employee, even in cases where there has been a breach of company policy.

Cheri May v Newmont Mining Services Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established