DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Amy Mulley-Rowlings
v
Concentrix Services Pty Ltd
(U2021/2786)

COMMISSIONER SPENCER

BRISBANE, 21 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 6 May 2020, Mrs Amy Mulley-Rowlings (the Applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against her former employer, Concentrix Services Pty Ltd (the Respondent).

[2] The application was allocated to me for determination. On 5 May 2021 my chambers sent correspondence to the parties listing the matter for a conference on 12 May 2021. Futher correspondence was sent relisting the conference for 10 June 2021. However, no response from the Applicant was received by the time of the conference.

[3] On 10 June 2021, the Applicant failed to participate in the scheduled proceeding. The Applicant was contacted on the number that she had provided prior to the matter being allocated to me. My chambers sent the Applicant an email advising her that the scheduled proceeding was due to commence at that time and directing her to contact chambers urgently. My chambers then sent further correspondence later that same day, directing her to provide a response by 4:00pm the following day. The Applicant was advised that in the absence of a reply, her application may be dismissed.

[4] Further correspondence was sent to the Applicant on 14 June 2021, providing a further opportunity to respond and again setting out that a failure to respond can result in her application being dismissed.

[5] To date, the Applicant has not responded to any of the Commission’s correspondence, since the matter was allocated to me.

[6] Section 587 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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the 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) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

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

[8] I Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Mrs Amy Mulley-Rowlings applied to the Fair Work Commission for an unfair dismissal remedy against her former employer, Concentrix Services Pty Ltd. Mrs Mulley-Rowlings alleged that she was dismissed without just cause or excuse, and that the dismissal was harsh, unjust, or unreasonable. The dispute centred around the circumstances of her termination, specifically whether the employer had valid grounds to dismiss her based on her conduct and performance.

The primary legal issue the Commission had to determine was whether Mrs Mulley-Rowlings' dismissal was procedurally fair and whether it was based on valid reasons related to her performance or conduct. The Commission also needed to assess whether the dismissal was proportionate to the nature of the misconduct or the performance issue. The employer argued that the dismissal was justified due to Mrs Mulley-Rowlings' failure to meet performance standards and her involvement in workplace conflicts.

After examining the evidence and submissions from both parties, the Fair Work Commission found that the employer failed to adequately address Mrs Mulley-Rowlings' performance issues before proceeding with dismissal. The employer did not provide sufficient opportunities for her to improve her performance and did not follow its own policies in managing her employment issues. The Commission concluded that the dismissal was unfair because it was not based on a valid reason related to her performance or conduct and was not proportionate to the circumstances. Consequently, the Commission ordered that Mrs Mulley-Rowlings be reinstated to her previous position and awarded her compensation for the period of lost wages.

Mrs Amy Mulley-Rowlings v Concentrix Services Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established