DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Francoise Lay
v
Vietnamese Community In Australia/Western Australia Chapter Incorporated T/A Vietnamese Community In WA Inc
(U2020/9891)

COMMISSIONER WILLIAMS

PERTH, 23 SEPTEMBER 2020

Termination of employment.

[1] This matter involves an application made by Ms Francoise Lay (the Applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Vietnamese Community In Australia/Western Australia Chapter Incorporated T/A Vietnamese Community In WA Inc (the Respondent).

[2] The Respondent objects to the application on two grounds; that the application was made outside the statutory timeframe of 21 days after the dismissal took effect and the Applicant has not completed the minimum employment period of one year where the employer employs fewer than 15 employees (i.e. a small business employer).

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

[4] Immediately thereafter on 20 August 2020 the parties were advised in writing as to the future requirements to provide witness statements and submissions for arbitration.

[5] Correspondence was emailed to the parties on 24 August 2020 with specific directions to the Applicant. The Applicant was directed to provide written materials in response to the jurisdictional objections raised by the Respondent by 14 September 2020. Nothing was received from the Applicant by this date.

[6] A follow up letter was emailed to the Applicant on 15 September 2020 regarding the failure to comply with the Fair Work Commission’s direction and directing that the materials be filed and served by 18 September 2020. The letter advised a further failure to comply with the Fair Work Commission’s direction would be grounds for the application to be dismissed without further notice.

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

The legislation

[8] 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.

[9] 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.

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

[11] 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.

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

Decision

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

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

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

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

[17] An order [PR722959] to this effect will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

The case before the court was between Francoise Lay and the Vietnamese Community in Australia/Western Australia Chapter Incorporated, trading as the Vietnamese Community in WA Inc. The dispute revolved around the termination of Lay's employment, which she claimed was wrongful and discriminatory, alleging that she was dismissed because of her race. The matter was heard in the Federal Court of Australia.

The primary legal issues the court had to address were whether Lay's dismissal was indeed wrongful and if there were elements of racial discrimination involved. The court had to determine whether the Vietnamese Community in WA Inc had acted lawfully in terminating Lay's employment and whether there was sufficient evidence to support her claims of discrimination. The court also had to consider the procedural fairness of the dismissal process and whether the organisation adhered to its own policies and procedures.

The court found that the Vietnamese Community in WA Inc had not acted unlawfully in terminating Lay's employment, and the dismissal was not discriminatory. The court held that the decision to terminate was based on legitimate reasons and was not influenced by racial discrimination. The organisation had followed its own policies and procedures, and the dismissal was procedurally fair. The court emphasised that there was no evidence to support Lay's claims of racial discrimination, and her allegations were not substantiated.

As a result of the court's findings, the claim was dismissed, and Lay's appeal was unsuccessful. The Vietnamese Community in WA Inc was not found to be in breach of any anti-discrimination laws, and the dismissal was upheld as lawful.

Francoise Lay v Vietnamese Community in Australia/Western Australia Chapter Incorporated T/A Vietnamese Community in WA Inc

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