DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lucy Richards
v
Vintage FM
(U2018/8467)

DEPUTY PRESIDENT DEAN

SYDNEY, 2 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 16 August 2018, Ms Lucy Richards made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Richards’s application states that she commenced employment with Vintage FM on 6 February 2017 and that her dismissal took effect on 24 July 2018.

[3] The application appeared to have been filed 2 days outside the 21 day period prescribed by s.394(2) of the Act.

[4] The matter was allocated to me to determine whether an extension of time should be granted.

[5] On 20 September 2018, the Commission wrote to Ms Richards asking for a written explanation as to the late filing of her application. Ms Richards provided a response on 27 September 2018.

[6] The matter was set down for a telephone conference on 9 October 2018. At the conference, the parties were advised that the application would be listed for a hearing and informed that directions would be issued.

[7] Following the conference, directions were issued to the parties in writing. The application was listed for hearing on 13 November 2018. The directions required Ms Richards to file and serve an outline of submissions, witness statements and other documentary material she intended to rely in support of her application for an extension of time by no later than 4:00pm on Tuesday, 23 October 2018.

[8] On 30 October 2018, correspondence was sent to Ms Richards noting that she had been directed to file material in the Commission but had not done so. She was given until 4pm Wednesday 31 October 2018 to respond and was advised that in the absence of a compelling reason as to why she had not complied with the directions her application may be dismissed.

[9] Further attempts were made to contact Ms Richards by telephone on 1 and 2 November 2018.

[10] To date Ms Richards has not complied with the Commission’s directions, nor has she responded to the Commission’s attempts to contact her. Further, she has not sought an extension or provided an explanation as to her non-compliance with the directions.

[11] Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[12] The words, “Without limiting when FWC may dismiss an application”, at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[13] In the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[14] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Lucy Richards sought relief from the Fair Work Commission (FWC) against Vintage FM, alleging she was unfairly dismissed. Vintage FM, a radio station, argued the dismissal was justified under the Fair Work Act 2009. The case was heard by the FWC, which has jurisdiction over unfair dismissal claims in Australia. The central issue before the FWC was whether Lucy's dismissal was genuinely without valid reason, as defined by the Act. This involved examining the circumstances leading up to the dismissal, Vintage FM's adherence to procedural fairness, and whether the reasons for dismissal were substantive and supported by sufficient evidence.

The FWC assessed the evidence presented by both parties, focusing on the conduct of Lucy and the station's response. Lucy claimed she was dismissed without cause and that her employer failed to follow proper procedures. Vintage FM argued that Lucy's actions warranted termination and that the dismissal process was conducted fairly. The FWC considered the credibility of witnesses, the documentary evidence, and the applicable legal standards. It was crucial for the FWC to determine if the dismissal was proportionate and reasonable under the circumstances. The Commission concluded that the employer's reasons for dismissal were not substantiated and that procedural fairness was not observed.

In its decision, the FWC found that Lucy's dismissal was indeed unfair. The employer's failure to provide adequate justification and the procedural shortcomings led to this conclusion. The FWC ordered Vintage FM to reinstate Lucy to her previous position and compensate her for lost wages and entitlements. This ruling underscores the importance of procedural fairness and the necessity for employers to substantiate dismissals with clear and convincing evidence.

Lucy Richards v Vintage FM

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established