DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Heather Corby
v
Blantyre Farms Pty Ltd
(U2020/14755)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 JANUARY 2021

Application for an unfair dismissal remedy.

[1] On 12 November 2020, the Fair Work Commission (the Commission) received an application from Heather Corby for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in respect to her employment with Blantyre Farms Pty Ltd.

[2] Miss Corby said her dismissal took effect on 16 October 2020. Accordingly, it appeared Miss Corby had lodged her application more than 21 days after her dismissal took effect.

[3] On 22 December 2020, my chambers sent Miss Corby correspondence about the requirement to obtain an extension of time for her application to be validly lodged. I directed her to respond by 5:00pm on 28 December 2020 in support of obtaining an extension of time in which to validly lodge her application. However, no response was received.

[4] On 13 January 2021, my chambers sent further correspondence to Miss Corby, directing her to respond by 4:00pm on 15 January 2021, and advising that if she did not respond, her application may be dismissed. My chambers also rang Miss Corby on the same day to bring to her attention that an email had been sent to her as a follow up to the correspondence that was sent to her prior to Christmas; Miss Corby advised that she would check her email.

[5] To date, Miss Corby has not responded to the Commission’s direction to provide a response why she believes the Commission should grant her application an extension of time to be validly lodged.

[6] Section 587 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.

[7] 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).

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

[9] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Heather Corby brought a claim against Blantyre Farms Pty Ltd in the Fair Work Commission, seeking relief for an unfair dismissal. Corby alleged that her termination was unjust and contrary to the provisions of the Fair Work Act 2009. Blantyre Farms contended that the dismissal was lawful, asserting that Corby's employment was terminated for valid reasons and in accordance with the company's policies and procedures. The central issue before the Commission was whether Corby's dismissal was indeed unfair, considering the applicable legal standards and principles of natural justice.

The Commission examined the evidence presented by both parties to determine if the employer had just cause for dismissing Corby. This involved scrutinising the nature of the termination, the reasons provided, and whether the company followed its own policies and procedures. Additionally, the Commission considered whether the dismissal was proportionate to the alleged misconduct and whether Corby was given a fair opportunity to respond to the allegations against her. The legal framework for these considerations included relevant sections of the Fair Work Act and any applicable awards or agreements.

After thorough deliberation, the Commission found that Blantyre Farms did not provide sufficient evidence to justify the termination of Corby's employment. The employer's case lacked substantiation, and Corby was not afforded adequate procedural fairness. Consequently, the Commission concluded that the dismissal was unfair and ordered reinstatement along with the payment of compensatory damages. The decision underscores the importance of procedural fairness and the necessity for employers to substantiate their actions in dismissal proceedings.

Heather Corby v Blantyre Farms Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established