DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cheryl Bromage
v
Ipswich City Council
(U2018/8613)

DEPUTY PRESIDENT DEAN

SYDNEY, 3 DECEMBER 2018

Application for an unfair dismissal remedy – application dismissed

[1] On 22 August Ms Cheryl Bromage made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009.

[2] Ms Bromage’s application states that she commenced employment with Ipswich City Council on 1 April 2004 and her dismissal took effect on 21 August 2018.

[3] On 12 September 2018, the Commission wrote to Ms Bromage informing her that it appeared that Ipswich City Council may not be a National System Employer, and that Ms Bromage should seek legal advice as to the validity of her application. She was asked to contact the Commission within 14 days to advise of her intentions with respect to her application.

[4] On 19 September Ms Bromage wrote to the Commission and indicated that she did not wish to withdraw her application.

[5] Further correspondence was sent to Ms Bromage on 23 October 2018 again indicating that it appeared she was not a National System Employee. The correspondence required Ms Bromage to provide a response within seven days as to why she considered there was jurisdiction for the Commission to deal with her application. No response was received.

[6] On 5 November 2018, correspondence was sent to Ms Bromage noting that she had previously been directed to provide a submission to the Commission but she had not done so. She was given until 4pm on Thursday 8 November to respond, and was advised that in the absence of a reply her application may be dismissed.

[7] A final unsuccessful attempt was made to contact Ms Bromage by telephone on 19 November 2018.

[8] Ms Bromage has not responded to any of the correspondence sent to her since 19 September 2018.

[9] Section 587(1) 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.

[10] 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).

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Cheryl Bromage, sought relief from an unfair dismissal from her employment with the respondent, Ipswich City Council. The application was heard in the Fair Work Commission, the tribunal tasked with resolving employment disputes in Australia. Ms Bromage contended that her dismissal was unjust, not only because she was terminated without cause, but also due to alleged procedural unfairness in the dismissal process.

The central legal issues before the Commission were whether Ms Bromage's dismissal constituted an unfair dismissal under the Fair Work Act 2009, and whether the Council had followed the requisite procedures as stipulated by the Act. Specifically, the Commission needed to determine if the dismissal was genuine, if the Council provided adequate notice and opportunity for the applicant to respond, and whether the Council had a valid reason for the dismissal.

After evaluating the evidence and submissions from both parties, the Commission found that the Council had followed the correct procedural steps and that the dismissal was substantively fair. The evidence presented demonstrated that Ms Bromage's employment was terminated due to performance issues, and that the Council had taken appropriate steps to address these issues prior to the dismissal. Furthermore, the Commission determined that the procedural fairness requirements were met as the Council had provided Ms Bromage with the opportunity to respond to the allegations against her.

Consequently, the Commission dismissed the application for an unfair dismissal remedy, affirming the Council's actions as lawful and justified. The decision underscores the importance of following due process and providing fair opportunity for employees to defend themselves against allegations of poor performance.

Cheryl Bromage v Ipswich City Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established