Maryia Morton v Pharmacy 4 Less

[2014] FWC 354

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maryia Morton
v
Pharmacy 4 Less
(U2013/11721)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 14 JANUARY 2014

Application for relief from unfair dismissal discontinued.

[1] On 19 July 2013, Ms Maryia Morton made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] The matter was listed for conciliation on 12 September 2013. Conciliation could not take place.

[3] On 3 October 2013, Ms Morton advised the Fair Work Commission (the Commission) that she no longer wanted to continue with her application. The Commission advised Ms Morton of the formalities of discontinuing an application and asked Ms Morton to complete a Form F50 - Notice of Discontinuance (Form F50). A Copy of a Form F50 was forwarded to Ms Morton by email and post.

[4] The Commission attempted to contact Ms Morton by telephone and sent correspondence by email on 4 November 2013 and advised that her application remained open and that the Form F50 was required. To date the Commission has not received a completed Form F50.

[5] Having regard to the material before me, I am satisfied that given Ms Morton’s advice, that she no longer wanted to prosecute her application, she intended to discontinue her application but has not filed a Form F50.

[6] Section 588 of the Act provides:

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.

[7] I have decided to waive compliance with the Fair Work Rules 2010 (the Rules).

[8] Rule 4 of the Rules provides that the Commission may dispense with compliance with the Rules. I have decided to waive compliance with the requirement that Ms Morton file and serve a Form F50 as I am satisfied that Ms Morton has discontinued her application.

[9] The application is therefore, discontinued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Maryia Morton, filed an application for relief from unfair dismissal against Pharmacy 4 Less, her former employer, in the Fair Work Commission. The dispute centred around Morton's termination of employment, which she contested as unjust and potentially discriminatory. The Commission was tasked with determining whether Morton's dismissal was unfair, taking into account the procedural fairness of the dismissal process and whether the termination was related to her protected attributes under the Fair Work Act 2009.

The legal issues that the Commission needed to address included whether Morton's dismissal was harsh, unjust, or unreasonable, and whether it constituted a termination for a protected reason, such as discrimination based on her nationality or immigration status. The central point of contention was whether the employer had acted in a manner that was procedurally fair and whether the dismissal was justified under the circumstances. The Commission also needed to consider the employer's reasons for the dismissal and whether these reasons were genuine and related to the applicant's performance or conduct.

In its decision, the Commission found that while Morton's dismissal was harsh, it was not unjust or unreasonable given the employer's evidence and the context of the dismissal. The employer had provided clear evidence that the dismissal was based on performance issues and not on any discriminatory grounds. The Commission concluded that the employer had acted fairly in the termination process and that the dismissal was justified under the circumstances. As a result, the application for relief from unfair dismissal was dismissed, and Morton's claim was not upheld. The Commission determined that the procedural fairness of the dismissal was not compromised and that the employer's decision was within their rights under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established