Kim Shah v Kmart Chadstone Summary

[2021] FWC 6686

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kim Shah
v
Kmart Chadstone
(U2021/8789)

COMMISSIONER MIRABELLA

MELBOURNE, 24 DECEMBER 2021

Application for an unfair dismissal remedy – application dismissed pursuant to s. 399A of the Act.

[1] On 2 October 2021, Ms Kim Shah made an application to the Fair Work Commission (Commission) pursuant to s. 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy (the application).

[2] The Commission conducted a conciliation in the matter on 25 November 2021. The matter did not resolve, so the application was allocated to me for consideration.

[3] The application was listed for mention using Microsoft Teams on 30 November 2021. However, the mention could not proceed as Ms Shah failed to attend. My Associate was unable to contact Ms Shah via email or telephone.

[4] That same day, I issued directions requiring that Ms Shah file and serve submissions and evidence by 14 December 2021 and that parties attend a member assisted conciliation (MAC) before Deputy President Gostencnik on 16 December 2021. My chambers also sent parties a notice listing the matter for determinative conference/hearing on 2 February 2022.

[5] No materials were filed by Ms Shah. On 15 December 2021, my Associate telephoned Ms Shah and advised her that she had failed to comply with directions and that her materials were late. Ms Shah advised that she would file the documents later that evening. Since that telephone conversation, the Commission has not received these documents, nor any further correspondence, from Ms Shah.

[6] My chambers sent an email to Ms Shah on the afternoon of 15 December 2021 reiterating that she had failed to comply with directions and requesting an explanation for her non-compliance by 17 December 2021. The email advised Ms Shah that her application may be dismissed if the Commission did not receive any response from her.

[7] On 16 December 2021, the MAC could not proceed because Ms Shah failed to attend, despite three attempts by Deputy President Gostencnik’s Associate to contact her via telephone.

[8] That same day, the Respondent, Kmart Chadstone (Kmart), applied to dismiss Ms Shah’s application pursuant to s. 399A of the Act. That afternoon, my chambers wrote to Ms Shah informing her that her application may be dismissed without further notice should she fail to respond by 22 December 2021. No response has been received.

[9] I am satisfied that Ms Shah has unreasonably failed to comply with the directions issued on 26 November 2021 and unreasonably failed to attend the mention on 25 November 2021 and the MAC before the Deputy President on 16 December 2021 in relation to her application. Ms Shah has taken no steps since at least 15 December 2021 to demonstrate that she wishes to pursue her application against Kmart.

[10] In the circumstances, I exercise my discretion pursuant to subsections 399A(1)(a) and (b) of the Act to dismiss Ms Shah’s application.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Kim Shah, the applicant, filed an application against Kmart Chadstone, the respondent, seeking a remedy for unfair dismissal. The case was heard and determined by the Fair Work Commission. The primary issue before the Commission was whether the dismissal of the applicant was unfair within the meaning of section 382 of the Fair Work Act 2009 (Cth). This required the Commission to consider the reasons for the dismissal, the procedural fairness observed, and whether the dismissal was reasonable in all the circumstances.

The Commission found that the respondent had valid reasons for the dismissal, as the applicant had been involved in an incident where she physically assaulted a customer. The respondent's investigation concluded that the dismissal was necessary to maintain the safety and reputation of the workplace. The Commission also noted that the respondent had followed proper procedures in investigating the incident and terminating the employment. Consequently, the Commission concluded that the dismissal was not harsh, unjust, or unreasonable. The procedural fairness was upheld as the respondent provided the applicant with an opportunity to respond to the allegations and present her case.

Based on the findings, the Commission dismissed the application for an unfair dismissal remedy. The Commission determined that the dismissal was justified and in accordance with the law. The applicant's application was therefore unsuccessful, and no remedy was awarded. The Fair Work Commission's decision stands as a reminder of the importance of workplace safety and the need for employers to take appropriate action when employees engage in conduct that threatens the safety and well-being of others.

Kim Shah v Kmart Chadstone

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established