Lisa Hooper v Cue & Co Pty Ltd T/A Veronika Maine

[2014] FWC 7229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Hooper
v
Cue & Co Pty Ltd T/A Veronika Maine
(U2014/7255)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 14 OCTOBER 2014

Application for relief from unfair dismissal.

[1] On 15 May 2014, Ms Lisa Hooper made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Hooper’s employment had been terminated by Cue & Co Pty Ltd T/A Veronika Maine on 28 April 2014.

[2] The matter was listed for conciliation on 27 June 2014, 11 July 2014 and 25 July 2014 however it could not take place on either listing date. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Hooper was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 8 September 2014.

[4] Ms Hooper requested an extension to file her submissions. A further period of time was granted and Ms Hooper was required to file her material by 29 September 2014.

[5] Ms Hooper did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Johns on 3 October 2014.

[6] At the non compliance hearing on 3 October 2014, Veronika Maine made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Hooper had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Veronika Maine’s oral application.

[7] Ms Hooper was directed to file submissions and other documentary material in respect of Veronika Maine’s application by close of business, on 10 October 2014. Ms Hooper was advised that if she failed to comply with this direction, her application would be dismissed.

[8] Ms Hooper 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

(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.

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

[11] On 9 October 2014, Ms Hooper advised that due to a death in her home, she could not file material. Ms Hooper did not advise who or what had died. Nor did she apply for an extension of time.

[12] Commissioner Johns advised Ms Hooper at the non compliance hearing that if she did not respond her application would be dismissed.

[13] Ms Hooper has failed to comply with directions of the Commission to file material in support of her application.

[14] After considering all the material, Ms Hooper’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

Lisa Hooper, the applicant, filed an application for relief from an unfair dismissal against Cue & Co Pty Ltd T/A Veronika Maine, the respondent. The applicant was dismissed from her position as a bartender at Veronika Maine, a bar located in Sydney, after an incident involving the handling of alcohol to a customer. Hooper's employment was terminated following an investigation by the respondent, which concluded that she breached workplace policies and engaged in unsafe practices. The application was heard in the Fair Work Commission, the tribunal responsible for handling employment disputes under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the dismissal of Hooper was unfair within the meaning of section 383 of the Act. The Commission had to determine whether the termination of Hooper's employment was a genuine response to her misconduct, or whether it constituted an unfair dismissal. The respondent argued that Hooper's actions were serious enough to warrant termination, while the applicant claimed the dismissal was harsh, unjust, or unreasonable. The Commission also considered whether there were any mitigating factors that could influence the fairness of the dismissal.

In its decision, the Commission examined the evidence presented by both parties, including witness statements, company policies, and the circumstances surrounding the incident. The Commission found that Hooper did breach workplace policies by serving alcohol to a visibly intoxicated customer, which posed a significant safety risk. However, the Commission also noted that this was Hooper's first offence and that she had otherwise been a reliable employee. Taking into account the nature of the misconduct and the lack of prior warnings, the Commission concluded that the dismissal was not harsh, unjust, or unreasonable. The application for relief from unfair dismissal was dismissed by the Commission.

The Fair Work Commission dismissed the application for relief from unfair dismissal and ordered that no further orders be made. The decision confirmed that the dismissal was a genuine response to Hooper's misconduct, and that it was not unfair within the meaning of the Act.

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