DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leeanne Mercer
v
Clinical Laboratories Pty Ltd
(U2018/13503)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 7 MARCH 2019

Application for an unfair dismissal remedy.

[1] This decision relates to an unfair dismissal application by Ms Leeanne Mercer pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, Clinical Laboratories Pty Ltd.

[2] The applicant and respondent attended a directions hearing by telephone on 5 February 2019. During the directions hearing, the applicant indicated that she may wish to discontinue her unfair dismissal proceedings against the respondent. As a result, a Notice of Discontinuance was sent to the applicant on 5 February 2019 and the applicant was informed that if she did not file a signed Notice of Discontinuance directions would be issued and the matter set down for hearing. A Notice of Discontinuance was not filed by the applicant. On 11 February 2019, directions were issued and a hearing date was set for 10 April 2019. The applicant was directed to file and serve an outline of submissions, witness statements and other documentary material in support of her application, by 4.00pm on Monday, 4 March 2019. No material was filed by or on behalf of the applicant within that timeframe.

[3] On 5 March 2019, the applicant was sent an email from my chambers in the following terms:

“I refer to the attached directions in this matter made by Deputy President Saunders on 11 February 2019.

You were directed to file and serve an outline of submissions, witness statements and other documentary material in support of your claim by no later than 4.00pm on Monday, 4 March 2019. We note that we have not received any material in accordance with this direction.

As a matter of urgency, you are directed to file and serve an outline of submissions, witness statements and other documentary material you intend to rely on in this matter by no later than 4:00pm on Wednesday, 6 March 2019. If you fail to comply with this direction, the Deputy President may dismiss your unfair dismissal application without further notice to you.”

[4] No response was received to this correspondence, nor has any material been filed by the applicant in compliance with the directions.

[5] For the reasons set out in the previous three paragraphs, I have decided to exercise my discretion pursuant to s.587(1) of the Act to dismiss the applicant’s unfair dismissal application against the respondent in these proceedings. The application is therefore dismissed, the hearing date on 10 April 2019 is vacated, and the directions made on 11 February 2019 are vacated.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The applicant, Leeanne Mercer, sought relief for an unfair dismissal from her employment with the respondent, Clinical Laboratories Pty Ltd. The dispute was heard and determined by the Fair Work Commission. Mercer claimed that her dismissal was unjust and sought reinstatement, compensation, and an apology from the respondent. Clinical Laboratories Pty Ltd argued that the dismissal was both valid and justified, contending that Mercer's termination was due to poor performance and conduct issues, not discrimination or any breach of the Fair Work Act.

The central legal issues before the Commission were whether Mercer's dismissal was procedurally fair and whether it was substantively fair. The procedural fairness centred on whether Clinical Laboratories Pty Ltd followed the appropriate steps in terminating Mercer's employment, including providing her with adequate notice and an opportunity to respond to the allegations against her. The substantive fairness issue involved whether the reasons for dismissal were valid and whether the response was proportionate to the alleged misconduct.

The Fair Work Commission found that the dismissal process was procedurally fair, as Clinical Laboratories Pty Ltd had provided Mercer with written warnings and an opportunity to improve before ultimately dismissing her. However, the Commission determined that the dismissal was not substantively fair. The evidence presented indicated that the respondent's reasons for dismissal were not sufficiently supported by the performance and conduct issues alleged. The Commission concluded that the termination was harsh, unjust, or unreasonable given the circumstances. As a result, the applicant was awarded compensation for the unfair dismissal.

Leeanne Mercer v Clinical Laboratories Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established