[2019] FWC 7117

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cora Gronowicz
v
G8 Education Ltd T/A Kindy Patch
(U2019/8325)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 15 OCTOBER 2019

Application for an unfair dismissal remedy – s 399A application made by employer – unfair dismissal application dismissed.

[1] This decision concerns an application made by G8 Education Ltd (Respondent) pursuant to s 399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for an unfair dismissal remedy made by its former employee, Ms Cora Gronowicz, pursuant to s 394 of the Act (Application).

Background

[2] Ms Gronowicz lodged her Application in the Fair Work Commission (Commission) on 27 July 2019.

[3] Ms Gronowicz failed to participate in a conciliation conference on 25 September 2019. The matter was then assigned to my chambers.

[4] The matter was listed for a directions hearing, by telephone, on 2 October 2019. There was no appearance by or on behalf of Ms Gronowicz at that directions hearing.

[5] An email in the following terms was sent to Ms Gronowicz after the directions hearing on 2 October 2019:

“Dear Ms Gronowicz

I refer to your unfair dismissal application (Application) lodged in the Fair Work Commission in relation to your employment with G8 Education Limited.

Your Application was listed for directions, by telephone, before Deputy President Saunders at 3pm today. There was no appearance by you, or on your behalf, at the directions hearing, by telephone, today. I also note that you did not attend the recent conciliation conference scheduled for this matter.

Deputy President Saunders has listed your Application for further directions, by telephone, at 3pm on Thursday, 10 October 2019. It is important that you participate in that directions hearing. If you are not available at that time, please let me know as a matter of urgency, so an alternative time and date can be set. If we do not hear from you prior to 3pm on Thursday, 10 October 2019 and you do not participate in the directions hearing, by telephone, at 3pm on Thursday, 10 October 2019, your Application may be dismissed without further notice to you.

I attach a Notice of Listing which sets out the relevant details for you to participate in the directions hearing, by telephone, at 3pm on Thursday, 10 October 2019.

Yours sincerely”

[6] There was no appearance by or on behalf of Ms Gronowicz at the directions hearing on 10 October 2019. My Associate attempted, without success, to contact Ms Gronowicz at the commencement of the directions hearing on 10 October 2019.

Application for dismissal

[7] During the directions hearing on 10 October 2019, the Respondent made an application pursuant to s 399A of the Act for the Application to be dismissed on the basis that Ms Gronowicz had failed to attend the conciliation on 25 September 2019, the directions hearing on 2 October 2019, and the directions hearing on 10 October 2019.

[8] Section 399A of the Act provides as follows:

“(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(2) The FWC may exercise its powers under subsection (1) on application by the employer.”

[9] The discretion of the Commission to dismiss an application under s 399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances. 1

[10] In light of the history of the proceedings outlined above, I am satisfied that:

• Ms Gronowicz has unreasonably failed to attend a conference conducted by the Commission (on 25 September 2019) in relation to the Application;

• Ms Gronowicz has unreasonably failed to attend two hearings held by the Commission (on 2 and 10 October 2019) in relation to her Application; and

• there has been an application by the employer in accordance with s 399A(2).

[11] In the circumstances, I exercise my discretion pursuant to s 399A(1)(a) of the Act to dismiss Ms Gronowicz’s unfair dismissal Application.

DEPUTY PRESIDENT

Appearances:

Ms Kelly, Employee Relations Advisor of the Respondent

Hearing details:

2019.

Newcastle:

10 October.

Printed by authority of the Commonwealth Government Printer

1 Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]

Cora Gronowicz brought proceedings against G8 Education Ltd T/A Kindy Patch, her former employer, seeking a remedy for unfair dismissal. The matter was heard in the Fair Work Commission. The primary issue before the Commission was whether the dismissal of Ms Gronowicz was harsh, unjust, or unreasonable, and if it could be considered unfair within the meaning of the Fair Work Act 2009. Additionally, the court had to determine whether the employer had a valid and sufficient reason to justify the dismissal, and if the dismissal process was procedurally fair.

The Fair Work Commission examined the employer's reasons for dismissal, which included allegations of misconduct and a breach of the employer's code of conduct. The Commission also assessed the evidence provided by both parties regarding the circumstances leading up to the dismissal. Ms Gronowicz argued that the dismissal was unjust, while G8 Education Ltd asserted that the decision was made in good faith and with appropriate procedural fairness. The Commission considered the proportionality of the response and whether there were alternative actions that could have been taken by the employer. Ultimately, the Fair Work Commission found that the dismissal was not harsh, unjust, or unreasonable, and that the employer had a valid reason for the termination. The procedural fairness of the dismissal process was also upheld, leading to the dismissal of Ms Gronowicz's unfair dismissal application.

As a result of the decision, the Fair Work Commission dismissed Ms Gronowicz's application for unfair dismissal remedy. The employer's decision to terminate Ms Gronowicz's employment was considered justified, and the process followed was deemed procedurally fair. The Commission did not find the dismissal to be harsh, unjust, or unreasonable, and therefore, the application was dismissed in its entirety.

Cora Gronowicz v G8 Education Ltd T/A Kindy Patch

DECISION

Background

Application for dismissal

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established