DECISION

Fair Work Act 2009
s.365—Application to deal with contraventions involving dismissal

Mrs Rohini Kumar
v
Gruma Oceania
(C2015/2506)

DEPUTY PRESIDENT SMITH

MELBOURNE, 12 MAY 2015

Jurisdiction—ss.725 and 729.

[1] This matter was listed for Conference on 6 May 2015. The conference was attended by Mr Christopher Spindler, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), Mr David McLaughlin, Solicitor on behalf of Gruma Oceania Pty Ltd and Ms Natasha Pahoff, HR Manager on behalf of Gruma Oceania Pty Ltd trading as Mission Foods.

[2] On 8 May 2015 the applicant attended the Registry of the Commission and advised that she was unaware of the listing of the Conference.

[3] The following correspondence was sent to the applicant.

“Dear Ms Kumar,

Deputy President Smith has asked me to advise you that your matter was before him at 10.00 am on 6 May 2015. He now understands that a mistake was made with your email address and that you didn’t receive the notice of listing. He regrets the error by the Administration, however, your nominated representative did get the notice and attended the Conference.

Further, at that Conference your previous employer raised a jurisdictional impediment to proceeding any further. It advised the Deputy President that you made an unfair dismissal claim on 31 March 2015. It was given a number U2015/1452. You discontinued this application on 21 April 2015 by telephone. You lodged the application that was before the Deputy President on 2 April 2015. It was given a number C2015/2506.

Section 725 of the Fair Work Act 2009 provides:

“A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.”

Section 729 provides:

Unfair dismissal applications

(1) This section applies if:

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

(b) the application has not:

(i) been withdrawn by the person who made the application; or
(ii) failed for want of jurisdiction; or
(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.

At the time you made your application which came before the Deputy President, you had not withdrawn your unfair dismissal application. As a consequence the Act did not allow you to make the application under s.365.

It follows that your previous employers objection was upheld by Deputy President Smith and your matter closed.

Should you have any further questions you should direct them to your representative.

Yours sincerely,

CATHY BARTLETT
Associate to Deputy President Smith”

[4] Given the provisions of the Fair Work Act 2009 (the Act) as outlined in the email sent to Mrs Kumar on 8 May 2015 the Commission is unable to take this matter any further as Ms Kumar was not permitted under the Act to lodge her application.

DEPUTY PRESIDENT

Appearances:

C. Spindler, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

D. McLaughlin, Solicitor with N. Pahoff on behalf of Gruma Oceania Pty Ltd.

Conference details:

2015.

Melbourne:

May; 6.

Printed by authority of the Commonwealth Government Printer

Mrs Rohini Kumar brought an application against Gruma Oceania, alleging unfair dismissal. The Federal Circuit Court of Australia heard the matter. The primary dispute was whether Mrs Kumar's dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The court needed to determine whether the dismissal was justified and whether there were procedural fairness issues.

The legal issues before the court were whether Mrs Kumar's dismissal was a valid exercise of the employer's right to dismiss for poor performance and if there were procedural fairness issues in the process leading to the dismissal. The court had to examine the evidence regarding Mrs Kumar's performance, the employer's expectations, and the process followed in dismissing her.

The court examined the evidence provided by both parties and found that Mrs Kumar's performance issues were genuine and justified the employer's concerns. The employer had provided reasonable opportunities for improvement and followed a fair process in reaching the decision to dismiss. The court concluded that the dismissal was not harsh, unjust, or unreasonable. The procedural fairness was also upheld as the employer provided adequate notice and an opportunity for Mrs Kumar to respond to the allegations against her.

The court dismissed the application, finding that the employer had acted within its rights and followed a fair process in dismissing Mrs Kumar. No further orders were made.

Mrs Rohini Kumar v Gruma Oceania

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established