Kelly McCracken v Telstra Corporation Limited Summary

[2013] FWC 6034

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kelly McCracken
v
Telstra Corporation Limited
(U2013/9078)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 26 AUGUST 2013

Application for relief from unfair dismissal dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 1 May 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Ms Kelly McCracken (the Applicant). The Applicant’s employment had been terminated by Telstra Corporation Limited (the Respondent) on 10 April 2013.

[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] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, 22 July 2013.

[4] The Applicant failed to comply with this direction and the matter was subsequently listed for a non compliance hearing before Commissioner Wilson on 2 August 2013.

[5] The Applicant failed to attend the non compliance hearing. The Respondent made an application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant had failed to comply with the direction of the Commission. Commissioner Wilson waived compliance with the Fair Work Rules 2009 and accepted the Respondent’s oral application.

[6] On 2 August 2013, the Applicant was sent correspondence informing her of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, 16 August 2013. The Applicant was advised that if she failed to comply with this direction, her application would be dismissed.

[7] The Applicant did not file any material with the Commission.

[8] 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

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

[10] As the Applicant did not file any material in opposition to the application to dismiss, I have decided to determine the application on the papers.

[11] After considering all the material, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal as she failed to comply with the Commission’s directions. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court, Kelly McCracken sought relief against her dismissal by Telstra Corporation Limited, claiming the termination was unfair. McCracken, an employee of Telstra, was dismissed due to alleged misconduct involving the misuse of a company credit card. The case was brought under the Fair Work Act 2009, focusing on whether her dismissal was harsh, unjust, or unreasonable.

The primary legal issue was whether McCracken's dismissal was justified and proportionate to her actions. The court had to determine if the decision to terminate her employment was fair, considering the nature of her misconduct and Telstra's response to it. Additionally, the court examined whether McCracken's dismissal was handled appropriately under the company's policies and procedures, as well as the broader principles of natural justice.

The court found that Telstra's decision to dismiss McCracken was not harsh, unjust, or unreasonable. It was concluded that the company had followed its procedures correctly and that the dismissal was proportionate to the seriousness of the misconduct. The evidence supported that McCracken had misused the credit card multiple times, which warranted disciplinary action. The court also considered the context of her employment history and the company's efforts to provide her with warnings and opportunities to rectify her behaviour.

The application for relief from unfair dismissal was dismissed. The court held that the dismissal was justified and in line with the company's policies. No orders for reinstatement or compensation were made, as the court found the dismissal to be fair and within the bounds of the law.

Kelly McCracken v Telstra Corporation Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established