DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jennifer Hallpike/Moran
v
Degani Bakery and Cafe T/A McLardie Biviano Family Trust
(U2015/3367)

COMMISSIONER WILSON

MELBOURNE, 6 JULY 2015

Application for relief from unfair dismissal.

[1] On 23 February 2015, Ms Jennifer Hallpike/Moran made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Hallpike/Moran’s employment had been terminated by Degani Bakery and Cafe T/A McLardie Biviano Family Trust on 12 February 2015.

[2] The matter was the subject of conciliation on 19 March 2015 however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Hallpike/Moran was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 11 May 2015.

[4] Ms Hallpike/Moran requested an extension to file her submissions. A further period of time was granted and Ms Hallpike/Moran was required to file her material by 1 June 2015.

[5] Ms Hallpike/Moran did not comply with this direction and the matter was listed for a non compliance hearing before me on 5 June 2015.

[6] On 5 June 2015, Ms Hallpike/Moran was granted an extension of time to file her submissions. A further period of time was granted and Ms Hallpike/Moran was required to file her material by 4.00 pm on 9 June 2015.

[7] On 10 June 2015, Degani Bakery made an application, pursuant to section 399A of the Act, that the matter be dismissed as Ms Hallpike/Moran had failed to comply with the direction of the Fair Work Commission.

[8] On 11 June 2015, Ms Hallpike/Moran was sent correspondence informing her of Degani Bakery’s section 399A application. Ms Hallpike/Moran was directed to file submissions and other documentary material in respect of Degani Bakery’s application by close of business, on 22 June 2015. Ms Hallpike/Moran was advised that if she failed to comply with this direction, her application would be dismissed.

[9] Ms Hallpike/Moran did not file any material with the Commission.

[10] 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.

[11] I am satisfied that Degani Bakery’s objection filed on 10 June 2015 is an application to have the matter dismissed for Ms Hallpike/Moran’s failure to comply with a direction of the Commission.

[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 Hallpike/Moran did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[14] After considering all the material, Ms Hallpike/Moran’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Jennifer Hallpike/Moran, sought relief from an unfair dismissal against Degani Bakery and Cafe T/A McLardie Biviano Family Trust in the Fair Work Commission. Hallpike/Moran had been employed by the respondent as a pastry chef and claimed that her dismissal was harsh, unjust, or unreasonable. The central issue before the Commission was whether the termination of Hallpike/Moran's employment was indeed unfair, considering the circumstances surrounding her dismissal.

In addressing the legal issues, the Commission examined the principles of fairness in the termination of employment as outlined in section 386 of the Fair Work Act 2009. It considered whether the dismissal was a proportionate response to the applicant’s conduct or performance, and whether there were any mitigating factors that should have been taken into account by the employer. The Commission also assessed the respondent's evidence regarding the reasons for the dismissal and the procedural fairness of the decision-making process.

The Commission concluded that the dismissal was not unfair. It found that the respondent had acted reasonably in terminating the employment due to the applicant’s conduct, which included insubordination and failure to follow instructions. The Commission determined that the respondent had followed appropriate procedures and that the dismissal was proportionate to the nature of the misconduct. Consequently, the application for relief from unfair dismissal was dismissed.

Jennifer Hallpike/Moran v Degani Bakery and Cafe T/A McLardie Biviano Family Trust

DECISION

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Legal Principle Established