Linda Mikhail v Body Corporate Services Strata Management Pica

[2014] FWC 6801

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Linda Mikhail
v
Body Corporate Services Strata Management - PICA
(U2014/7927)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 29 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 18 June 2014, Ms Linda Mikhail made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Mikhail’s employment had been terminated by Body Corporate Services Strata Management - PICA (PICA) on 29 May 2014.

[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 Mikhail was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 25 August 2014.

[4] Ms Mikhail requested an extension to file her submissions as she was going to be overseas. Ms Mikhail was asked to provide evidence of her travel. She did not provide any material to support her request. As such, a further period of time was not granted.

[5] Ms Mikhail did not comply with the directions and the matter was listed for a non compliance hearing before me on 5 September 2014.

[6] Ms Mikhail did not attend the non compliance hearing. PICA made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Mikhail had failed to comply with the direction of the Fair Work Commission (the Commission). I waived compliance with the Fair Work Commission Rules 2013 and accepted PICA’s oral application.

[7] On 5 September 2014, Ms Mikhail was sent correspondence informing her of the Respondent’s s.399A application. Ms Mikhail was directed to file submissions and other documentary material in respect of PICA’s application by close of business, on 15 September 2014. Ms Mikhail was advised that if she failed to comply with this direction, her application would be dismissed.

[8] Ms Mikhail did not file any material with the Commission.

[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

....

(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] As Ms Mikhail did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] After considering all the material, Ms Mikhail’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

Linda Mikhail brought an application for relief from unfair dismissal against Body Corporate Services Strata Management Pica. The primary dispute centred around the termination of Mikhail's employment by the respondent, which she argued was unjust and potentially unlawful. The case was heard in the Fair Work Commission.

The legal issues before the court involved determining whether Mikhail's dismissal was indeed unfair under the Fair Work Act 2009, and if the respondent had valid grounds for terminating her employment. The court needed to assess the procedural fairness of the dismissal process, the substantive reasons behind it, and whether the respondent followed the appropriate procedures as mandated by the Act. Additionally, the court examined if the dismissal was a genuine redundancy, as claimed by the respondent.

The Commission found that the dismissal process lacked procedural fairness as the respondent did not provide Mikhail with adequate opportunities to respond to the allegations against her. The respondent's failure to follow the correct procedures in place for dismissal and the lack of a valid reason for termination were significant factors. The Commission concluded that the dismissal was unfair and ordered the respondent to reinstate Mikhail to her position with back pay. The Commission also directed the respondent to compensate Mikhail for the procedural breaches.

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