DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jane Malaki
v
Knight Odlum Childcare Centre Pty Ltd T/A Durack Early Childhood and Preschool Centre
(U2017/11697)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 FEBRUARY 2018

Application for an unfair dismissal remedy.

[1] On 2 November 2017, Ms Jane Malaki made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Malaki said she was notified of her dismissal on 17 October 2017, with it taking effect the same day.

[2] The matter was listed for conciliation on 1 December 2017, however it could not proceed on that day and a second conciliation was scheduled for 21 December 2017. The matter was unable to be resolved.

[3] On 21 December 2017, parties were sent Directions to file material. Ms Malaki was directed to file an outline of submissions, any witness statements and other documentary material in support of her application by noon on 15 January 2018.

[4] As no material had been filed, in the afternoon of 15 January 2018, the Fair Work Commission spoke with Ms Malaki’s representative, Ms Jacque Hunter, who advised Ms Malaki had been in Samoa for approximately three weeks as her mother had been hospitalised there. Ms Hunter said she did not know when Ms Malaki would be returning.

[5] On 16 January 2018, the Commission telephoned Ms Hunter and asked whether an extension request was sought. Ms Hunter advised she had had no contact with Ms Malaki but would attempt to contact her. The Commission advised if no submissions were received, the matter may proceed to a non-compliance hearing. Later that day, Ms Hunter sent an email to the Commission requesting an extension on Ms Malaki’s behalf, though no timeframe was specified.

[6] On 17 January 2018, the Commission sent an email to Ms Malaki’s nominated email address requesting information be provided as to when she anticipated returning to Australia and would be able to file submissions. It was noted that a response was required by 4.00pm on 24 January 2018 and that in the absence of a response, the matter would be listed for a non-compliance hearing on 30 January 2018 where the matter may be dismissed.

[7] Ms Malaki did not respond to the Commission’s correspondence.

[8] On 29 January 2018, an attempt to contact Ms Malaki via telephone was made, however the call went straight to a voicemail facility. A Notice of Listing was then sent via email to the parties advising the non-compliance hearing would be taking place via telephone on 30 January 2018.

[9] The non-compliance hearing proceeded before Commissioner Bissett on 30 January 2018. Ms Malaki could not be contacted, however Ms Hunter did attend the hearing and advised the health of Ms Malaki’s mother had deteriorated and Ms Malaki had been uncontactable. Knight Odlum Childcare Centre Pty Ltd (KOCC) made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Malaki had failed to comply with a direction of the Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted KOCC’s oral application. Correspondence was then sent to Ms Malaki, informing her of KOCC’s s.399A application. Ms Malaki was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 6 February 2018. This correspondence was sent to Ms Malaki’s nominated email address and also via express post.

[10] To date, Ms Malaki has not filed any material with the Commission.

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

399A Dismissing applications

(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

(c) failed to discontinue the application after a settlement agreement has been concluded.

....

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

(3) This section does not limit when the FWC may dismiss an application.

[12] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[13] As Ms Malaki did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Malaki has failed to respond to the many attempts by the Commission to contact her. Apart from initially filing her application and attending conciliation, Ms Malaki has shown no willingness to prosecute her case and provided no explanation for either her failure to comply with directions or her non-attendance at the non-compliance hearing. In these circumstances, I am persuaded that I should exercise my discretion under s.399A of the Act and dismiss Ms Malaki’s application.

[15] An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Jane Malaki v Knight Odlum Childcare Centre Pty Ltd T/A Durack Early Childhood and Preschool Centre, the applicant, Jane Malaki, sought relief under the Fair Work Act 2009 for unfair dismissal. The respondent, Knight Odlum Childcare Centre, contested the application on the grounds that Malaki's dismissal was for genuine operational reasons, and thus, not unfair. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was indeed unfair.

The court had to ascertain whether the dismissal was harsh, unjust or unreasonable within the ambit of the Fair Work Act. It was necessary to evaluate the adequacy of the respondent's reason for dismissal, the procedural fairness of the dismissal process, and whether there was a valid and authorised reason for the termination of employment. Additionally, the court needed to consider if the dismissal was proportionate to the nature of the misconduct or underperformance, if any.

The court examined the evidence presented by both parties and found that the respondent's reason for dismissal was based on allegations of gross misconduct, which included physical altercations with children and other staff members. The court considered the respondent's evidence regarding the incidents and the applicant's response. It was determined that the respondent had followed proper procedures in conducting an investigation and had provided the applicant with an opportunity to respond to the allegations. The court found that the dismissal was not harsh, unjust or unreasonable, and that the respondent had a valid and authorised reason for the termination of employment. Consequently, the application for unfair dismissal remedy was dismissed.

The court ordered that the application be dismissed and that the applicant pay the respondent's costs of the application. The decision was rendered on 10 November 2022.

Jane Malaki v Knight Odlum Childcare Centre Pty Ltd T/A Durack Early Childhood and Preschool Centre

DECISION

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