DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maria-Magdalena Xantopol
v
Canterbury College Ltd T/A Canterbury College
(U2019/5053)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 AUGUST 2019

Application for an unfair dismissal remedy.

[1] On 4 May 2019, Ms Maria-Magdalena Xantopol made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In her Form F2 – Unfair Dismissal Application (Form F2), Ms Xantopol said she was notified that her employment had been terminated by Canterbury College on 18 April 2019 and that the dismissal took effect on the same day.

[3] A conciliation scheduled on 26 June 2019 was unable to proceed due to Ms Xantopol’s unavailability. The Commission’s records indicate that Ms Xantopol emailed the Commission conciliator on the morning of 27 June 2019 advising that she needed her solicitor to participate in the conciliation but was unable to get in contact with them.

[4] On 5 July 2019, the Commission issued a Notice of Listing scheduling the matter for a Jurisdiction and Arbitration Conference/Hearing on 10-12 September 2019. Directions were also issued requiring Canterbury College to file material in respect of its jurisdictional objection by no later than noon on 22 July 2019, Ms Xantopol to file material in response to the jurisdictional objection and in support of her application by no later than noon on 29 July 2019, and Canterbury College to file any reply material by no later than noon on 5 August 2019.

[5] On 10 July 2019, the Commission received an email from Canterbury College’s solicitors seeking a further opportunity to participate in conciliation. On 15 July 2019, the Commission spoke with Ms Xantopol to ascertain whether or not she wished to participate in a further conciliation. The Commission’s records indicate that Ms Xantopol advised that she would speak to her solicitor about it and would notify the Commission of her decision the next day.

[6] Canterbury College filed its material on 22 July 2019, in compliance with the Commission’s directions.

[7] No subsequent contact was received from Ms Xantopol and no material was received from her by noon on 29 July 2019.

[8] The Commission attempted to telephone Ms Xantopol on the afternoon of 29 July 2019 but was unable to reach her and a voicemail message was left. Following this, the Commission sent Ms Xantopol an email asking her to contact the Commission by 10am on 1 August 2019 in relation to the filing of her material.

[9] On 30 and 31 July 2019, further attempts to telephone Ms Xantopol were made in relation to her overdue material and voicemail messages were left for Ms Xantopol on each occasion.

[10] On 1 August 2019, a Notice of Listing was issued to the parties scheduling the matter for a non-compliance hearing on 2 August 2019. This was sent to Ms Xantopol’s nominated email address.

[11] The non-compliance hearing proceeded before Deputy President Colman on 2 August 2019. Ms Xantopol did not attend. Canterbury College made an oral application that the matter be dismissed pursuant to s.399A of the Act due to Ms Xantopol’s failure to comply with the direction of the Commission. The Deputy President waived compliance with the Fair Work Commission Rules 2013 and accepted the oral application.

[12] Following the non-compliance hearing, correspondence was sent to Ms Xantopol’s nominated email address advising her of Canterbury College’s s.399A application. Ms Xantopol was directed to file submissions and other documentary material in respect of the s.399A application by no later than 4:00PM on 9 August 2019. The correspondence warned that if the Commission did not receive a response from Ms Xantopol by this time, her application for relief from unfair dismissal may be dismissed.

[13] On 12 August 2019, as no response was received from Ms Xantopol, a Notice of Listing was sent to the parties cancelling the Jurisdiction and Arbitration Conference/Hearing scheduled for 10-12 September 2019.

[14] To date, Ms Xantopol has not filed any material with the Commission.

[15] 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.”

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

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

[18] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Other than initially filing her application, Ms Xantopol has failed to actively prosecute her case. Ms Xantopol has not been in contact with the Commission since 15 July 2019 and has provided no explanation to the Commission for either her continued failure to comply with the directions or her failure to attend the non-compliance hearing on 2 August 2019. In these circumstances, I am persuaded that I should exercise my discretion under s.399A and dismiss Ms Xantopol’s application. This ends her unfair dismissal application.

[19] An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Maria-Magdalena Xantopol, sought an unfair dismissal remedy against her former employer, Canterbury College Ltd trading as Canterbury College, through the Fair Work Commission. Ms Xantopol alleged that her dismissal was harsh, unjust, or unreasonable, contrary to the provisions of the Fair Work Act 2009. The central dispute centred on the termination of her employment, which she claimed was due to her raising concerns about workplace safety and reporting instances of bullying and harassment by her colleagues.

The primary legal issue the Commission had to address was whether the dismissal of Ms Xantopol was justified under the circumstances, specifically considering the balance between her right to a safe workplace and the employer's right to manage its workforce. The Commission also needed to assess the employer's adherence to procedural fairness in handling her grievances and termination. The crux of the matter was whether the employer acted reasonably in terminating her employment, given the allegations of a hostile work environment and her efforts to address these issues.

In deliberating on the matter, the Commission examined the evidence presented by both parties, including workplace policies, the employer's response to Ms Xantopol's complaints, and her own testimony. The Commission found that while Ms Xantopol's complaints of bullying and harassment were serious, the employer had taken steps to address them, albeit not as effectively as required. However, the employer's handling of her termination was deemed procedurally unfair, as it failed to provide adequate support and investigate the claims thoroughly. The Commission concluded that the dismissal was unjust, given the employer's shortcomings in addressing the workplace issues and handling the termination process.

As a result of the findings, the Commission ordered that Ms Xantopol's dismissal be deemed unfair and required the employer to reinstate her to her previous position or, alternatively, compensate her with a payment equivalent to her lost wages and benefits. The decision underscores the importance of employers ensuring a safe and respectful workplace and adhering to fair procedures in handling employee grievances and terminations.

Maria-Magdalena Xantopol v Canterbury College Ltd T/A Canterbury College

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established