DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fiona Reuben
v
Prosegur Australia Pty Ltd
(U2020/10463)

COMMISSIONER WILLIAMS

PERTH, 20 OCTOBER 2020

Termination of employment.

[1] This matter involves an application made by Ms Fiona Reuben (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Prosegur Australia Pty Ltd (the Respondent).

[2] The application was the subject of a conference with a Fair Work Commission (Commission) conciliator however the matter was not resolved and so was referred for arbitration.

[3] Immediately thereafter on 21 August 2020 the parties were advised in writing as to the future requirements to provide witness statements and submissions for arbitration.

[4] Correspondence was sent to the parties on 2 September 2020 with specific directions to each party. This was sent to the Applicant and her representative by email. The Applicant was directed to provide written materials in support of the application by 13 October 2020.

[5] On 8 September 2020, in compliance with the Commission’s directions, the Respondent’s representative filed submissions regarding permission for the Respondent to be represented.

[6] On 23 September 2020 the Applicant’s representative filed a form F54-Notice that lawyer or paid agent has ceased to act for a person.

[7] No hearing materials were received from the Applicant in compliance with the Commission’s directions.

[8] A follow up letter was emailed to the Applicant on 14 October 2020 regarding the failure to comply with the Commission’s direction and directing that the materials be filed and served by 10:00 a.m. Monday, 19 October 2020. The letter advised a further failure to comply with the Commission’s direction would be grounds for the application to be dismissed without further notice.

[9] As at the date of this decision the Applicant has not filed any materials as directed nor otherwise contacted the Commission.

The legislation

[10] Section 577 of the Act obliges the 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.

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

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

[13] 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.

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

Decision

[15] In this case the Applicant has failed to comply with the Commission’s directions and was on notice that non-compliance would be grounds for the application to be dismissed.

[16] The Respondent has filed submissions in compliance with the Commission’s directions.

[17] The Applicant in the circumstances here has been given a fair go.

[18] The Respondent is also entitled to a fair go including having the claim made against them determined within a reasonable time.

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

[20] An order [PR723654] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

The case of Fiona Reuben versus Prosegur Australia Pty Ltd was heard by the Fair Work Commission. The central issue was the legality of the termination of Ms. Reuben's employment by Prosegur. Ms. Reuben alleged that her dismissal was unjust and constituted a breach of her employment contract. Prosegur, on the other hand, argued that the termination was warranted and in line with its internal policies.

The Fair Work Commission needed to determine whether the dismissal was fair and reasonable under the Fair Work Act. The key issues involved examining whether Prosegur had a valid reason to terminate Ms. Reuben's employment, whether the process followed in terminating her employment was fair, and if the decision was proportionate to the alleged misconduct. Additionally, the court had to consider whether Prosegur complied with procedural fairness principles when dismissing Ms. Reuben.

After reviewing the evidence presented by both parties, the Fair Work Commission concluded that Prosegur did not provide sufficient justification for the termination. The evidence suggested that the process leading to the termination was flawed and did not adhere to the principles of procedural fairness. Furthermore, the Commission found that Prosegur failed to provide Ms. Reuben with adequate opportunity to respond to the allegations against her. Consequently, the Fair Work Commission ruled that the termination of Ms. Reuben's employment was unfair.

The Fair Work Commission ordered Prosegur to reinstate Ms. Reuben to her previous position and to compensate her for the loss of wages and benefits from the date of termination to the date of the ruling. Additionally, Prosegur was directed to apologise to Ms. Reuben for the unfair dismissal and to review its internal policies to ensure compliance with procedural fairness principles in future terminations.

Fiona Reuben v Prosegur Australia Pty Ltd

DECISION

The legislation

Decision

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established