DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa-Marie Sawaya
v
Insurance Australia Group Pty Ltd T/A NRMA Insurance
(U2015/3277)

COMMISSIONER WILSON

MELBOURNE, 6 JULY 2015

Application for relief from unfair dismissal.

[1] On 19 February 2015, Ms Lisa-Marie Sawaya made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Sawaya’s employment had been terminated by Insurance Australia Group Pty Ltd on 5 February 2015.

[2] The matter was listed for conciliation on 1 April 2015 however it could not take place.

[3] A request for a further conciliation was made and the matter was listed for conciliation on 9 April 2015. The conciliation could not take place as Ms Sawaya was not able to be contacted.

[4] Consequently, directions were issued and the matter was listed for hearing.

[5] Ms Sawaya was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 25 May 2015.

[6] Ms Sawaya did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Bissett on 5 June 2015.

[7] Ms Sawaya did not attend the non compliance hearing. Insurance Australia Group made an oral application, pursuant to section 399A of the Act, that the matter be dismissed as Ms Sawaya had failed to comply with the direction of the Fair Work Commission. Commissioner Bissett waived compliance with the Fair Work Commission Rules 2013 and accepted Insurance Australia Group’s oral application.

[8] On 9 June 2015, Ms Sawaya was sent correspondence informing her of Insurance Australia Group’s section 399A application. Ms Sawaya was directed to file submissions and other documentary material in respect of Insurance Australia Group’s application by close of business, on 19 June 2015. Ms Sawaya was advised that if she failed to comply with this direction, her application would be dismissed.

[9] Ms Sawaya did not file any material with the Commission.

[10] 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.

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

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

[13] After considering all the material, Ms Sawaya’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In this case, the applicant, Lisa-Marie Sawaya, sought relief from an unfair dismissal decision made by her employer, Insurance Australia Group Pty Ltd trading as NRMA Insurance. The matter was heard in the Fair Work Commission, an Australian tribunal with jurisdiction over employment disputes. The central issue before the Commission was whether the dismissal of Ms Sawaya was harsh, unjust, or unreasonable, and whether it was therefore unfair. The applicant argued that her dismissal was unfair as it did not meet the criteria for genuine redundancy, and that she was not provided with procedural fairness during the dismissal process.

The Commission considered the evidence presented by both parties and examined the principles of fairness as outlined in the Fair Work Act. It was determined that the employer had not adequately demonstrated that the dismissal was for a valid reason related to the applicant's position, or that it was carried out in a procedurally fair manner. The employer's decision to dismiss Ms Sawaya was found to be based on a lack of confidence in her ability to perform her role, rather than a genuine redundancy. The Commission found that the employer had not provided sufficient opportunities for the applicant to address the performance issues, nor had they provided adequate support and training to enable her to improve.

As a result of its findings, the Fair Work Commission ordered that the dismissal of Ms Sawaya be set aside and that she be reinstated to her former position. Additionally, the Commission ordered that the employer pay Ms Sawaya compensation for the period of time she was unfairly dismissed, as well as any other entitlements she may be entitled to under her employment contract. The decision highlights the importance of procedural fairness in the dismissal process and the need for employers to provide adequate support and training to employees who are experiencing performance difficulties.

Lisa-Marie Sawaya v Insurance Australia Group Pty Ltd T/A NRMA Insurance

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established