DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katrina Pascual-Alberto
v
AGL Energy Limited T/A AGL
(U2015/10392)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 14 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 3 September 2015, Ms Katrina Pascual-Alberto made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Pascual-Alberto’s employment had been terminated by AGL Energy Limited on 25 August 2015.

[2] The matter was listed for conciliation on 30 October 2015, however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Pascual-Alberto was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 23 November 2015.

[4] Ms Pascual-Alberto did not comply with the direction.

[5] On 23 November 2015, a Fair Work Commission staff member left a telephone message for Ms Pascual-Alberto to return their call regarding the submissions which had not been filed.

[6] On 24 November 2015, two further telephone messages were left with Ms Pascual-Alberto asking that she urgently telephone the Commission regarding her overdue submissions.

[7] Ms Pascual-Alberto did not return the Commission’s phone calls.

[8] On 25 November 2015, AGL filed an objection to the application and sought the dismissal of Ms Pascual-Alberto’s application. AGL based their objection on grounds which include failure to comply with directions.

[9] On 25 November 2015, Ms Pascual-Alberto was sent correspondence, via post and email, informing her of AGL’s section 399A application. Ms Pascual-Alberto was directed to file submissions and other documentary material in respect of AGL’s application by close of business, on 7 December 2015. Ms Pascual-Alberto was advised that if she failed to comply with this direction, her application would be dismissed.

[10] Ms Pascual-Alberto did not file 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 Pascual-Alberto 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 Pascual-Alberto’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Katrina Pascual-Alberto v AGL Energy Limited T/A AGL involved an application for relief from unfair dismissal brought before the Fair Work Commission. Katrina Pascual-Alberto, an employee of AGL Energy Limited, sought relief after being dismissed from her position. AGL Energy Limited, trading as AGL, defended the dismissal on the grounds of performance and misconduct. The central dispute revolved around the fairness of the dismissal, with Pascual-Alberto arguing that the dismissal was unjust, while AGL maintained that it was necessary due to her performance issues and alleged misconduct.

The legal issues the court had to address included whether the dismissal was procedurally fair, if the dismissal was based on valid reasons, and whether there were any mitigating factors that could render the dismissal unfair. The court needed to assess whether AGL followed appropriate procedures in dismissing Pascual-Alberto, if the reasons provided for the dismissal were substantiated, and whether the dismissal was disproportionate to the alleged misconduct or performance issues. Additionally, the court had to consider Pascual-Alberto’s argument that the dismissal was unfair due to a failure to provide reasonable opportunities for improvement or alternative measures.

In its reasoning, the Fair Work Commission found that AGL did not adequately follow procedural fairness in dismissing Pascual-Alberto, as she was not given sufficient opportunities to improve her performance or address the misconduct allegations. The court determined that the reasons provided by AGL for the dismissal were not fully substantiated, and that the dismissal was disproportionate to the issues at hand. Consequently, the court ruled that the dismissal was unfair. The decision highlighted the importance of providing adequate support and procedural fairness in the dismissal process, especially when dealing with performance and misconduct issues.

As a result of the court's decision, the Fair Work Commission ordered AGL Energy Limited to reinstate Pascual-Alberto to her previous position, provide her with back pay, and take steps to rectify any adverse effects of the unfair dismissal. The orders underscored the significance of fair treatment and procedural integrity in employment terminations.

Katrina Pascual-Alberto v AGL Energy Limited T/A AGL

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established