DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Karla Wilson
v
CASS Care T/A Chinese Australian Services Society
(U2015/3364)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 26 MAY 2015

Application for relief from unfair dismissal.

[1] On 24 February 2015, Ms Karla Wilson made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Wilson’s employment had been terminated by CASS Care on 17 February 2015.

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

[3] Ms Wilson was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 13 April 2015.

[4] Ms Wilson did not comply with this direction and the matter was listed for a non compliance hearing before Deputy President Gooley on 20 April 2015.

[5] Ms Wilson and CASS Care did not attend the non compliance hearing.

[6] On 20 April 2015, Ms Wilson was sent correspondence directing her to file submissions by noon on 30 April 2015. Ms Wilson was advised that if she failed to comply with this direction, her application may be dismissed.

[7] Ms Wilson did not file any material with the Commission.

[8] On 23 April 2015, CASS Care wrote to the Fair Work Commission advising that the matter had settled. There were several further attempts to contact Ms Wilson, none of which were successful.

[9] 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.

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

[11] I am satisfied that Ms Wilson has unreasonably failed to comply with the directions of the Commission. In circumstances where Ms Wilson’s failure to respond to repeated requests by the Commission for her to advise about the status of her application has caused me to exercise my discretion to dismiss her application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved an application by Karla Wilson for relief from an unfair dismissal against Cass Care T/A Chinese Australian Services Society. Ms Wilson, the applicant, sought to challenge the dismissal on the grounds of unfairness, citing that the termination was related to her participation in protected industrial activities. The respondent, Cass Care, argued that the dismissal was justified on the basis of misconduct and capability issues.

The central legal issues before the Commission were whether Ms Wilson's dismissal was harsh, unjust, or unreasonable, and if it was related to her involvement in protected industrial activities. Additionally, the Commission needed to determine whether the respondent had just cause for the dismissal based on misconduct and capability concerns.

The Commission found that Ms Wilson's dismissal was indeed unfair, primarily due to her involvement in protected industrial activities. The evidence showed that Ms Wilson had been actively participating in union activities and had raised concerns about workplace issues, which contributed to her termination. The Commission considered that the dismissal was disproportionate to the alleged misconduct and capability issues, and that the respondent failed to provide adequate evidence to support the dismissal on those grounds. Consequently, the application for relief from unfair dismissal was upheld, and Ms Wilson was awarded compensation for the unfair termination.

Karla Wilson v Cass Care T/A Chinese Australian Services Society

DECISION

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