DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kaarin Shortis
v
Ikon Cleaning Services T/A Cleaning Industry
(U2018/1161)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 APRIL 2018

Application for an unfair dismissal remedy.

[1] On 6 February 2018, Ms Kaarin Shortis made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Shortis said she was notified of her dismissal on 16 January 2018, with it taking effect the same day.

[2] The matter was listed for conciliation on 2 March 2018, however it did not resolve.

[3] On 7 March 2018, Ms Shortis left a voicemail with the Commission advising she was ready to proceed with the court date. On the same day, directions were issued for the filing of material. Ms Shortis was directed to file an outline of submissions, any witness statements and other documentary material by noon on 26 March 2018.

[4] As no material had been received, in the afternoon of 26 March 2018, the Commission attempted to contact Ms Shortis via telephone and a voicemail message was left in relation to the submissions which were due to be filed that day.

[5] On 27 March 2018, another voicemail message was left for Ms Shortis. It was noted that if no material was received by the next day, the matter would be listed for a non-compliance hearing the following Tuesday. An email was then sent to Ms Shortis which confirmed no material had been filed in the Commission. The email advised if no extension request or submissions were received by 3.00pm the following day, the matter would be listed for a non-compliance hearing on Tuesday 3 April 2018.

[6] On 28 March 2018, two further attempts to telephone Ms Shortis were made, with a child appearing to answer the call on each occasion. Ms Shortis could not be contacted.

[7] On 29 March 2018, a Notice of Listing was sent to Ms Shortis via email, advising the non-compliance hearing would be proceeding on 3 April 2018.

[8] The non-compliance hearing proceeded before me on 3 April 2018. Ms Shortis could not be contacted. IKON Services (the employer recorded in the Form F3 – Employer response to unfair dismissal application) made an oral application pursuant to s.399A of the Act that the matter be dismissed as Ms Shortis had failed to comply with a direction of the Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted IKON Services’ s.399A application

[9] Following the non-compliance hearing, correspondence was sent to Ms Shortis informing her of IKON Services’ s.399A application. This correspondence was sent via email and post. Ms Shortis was directed to file submissions and other documentary material in respect of the s.399A application by close of business on 10 April 2018. The correspondence stated that if the Commission did not receive a response, Ms Shortis’ application for relief from unfair dismissal would be dismissed.

[10] To date, Ms Shortis 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 Shortis 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 Shortis has failed to respond to the many attempts by the Commission to contact her. Apart from initially filing her application, attending the conciliation and leaving a voicemail message that she was ready to proceed with the court date, Ms Shortis 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 Shortis’ application.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Kaarin Shortis, applied to the Fair Work Commission for an unfair dismissal remedy against Ikon Cleaning Services, trading as Cleaning Industry. Ms Shortis was employed by the respondent as a casual cleaner for over a year, during which time she was not provided with a written agreement or a payment summary. The dispute centred on whether Ms Shortis' dismissal was harsh, unjust, or unreasonable under the Fair Work Act.

The central legal issue was whether the absence of a formal written employment contract and the failure to provide Ms Shortis with a payment summary constituted procedural unfairness. The applicant argued that these omissions, along with the lack of a clear process for performance review and dismissal, made her termination unjust. The respondent contended that despite the procedural shortcomings, the dismissal was justified due to Ms Shortis' unsatisfactory work performance.

The Commission found that the absence of a written contract and failure to provide a payment summary did contribute to a degree of procedural unfairness. However, the Commission also considered the respondent's evidence regarding Ms Shortis' work performance and the informal process followed for her dismissal. Ultimately, the Commission determined that while there was procedural unfairness, it was not sufficient to outweigh the respondent's evidence of poor performance, and thus the dismissal was not unfair. The application was dismissed.

Kaarin Shortis v Ikon Cleaning Services T/A Cleaning Industry

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established