Ms Anita Hutchinson v Jacob Boys Pty Ltd T/A Ranbuild an Aussie Mans Shed

[2013] FWC 2796

FAIR WORK COMMISSION

DECISION

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

Ms Anita Hutchinson
v
Jacob Boys Pty Ltd T/A Ranbuild - An Aussie Mans Shed
(U2012/15923)

DEPUTY PRESIDENT ASBURY

BRISBANE, 7 MAY 2013

Application for unfair dismissal remedy.

[1] On 23 November 2012 an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 was made by Ms Anita Hutchinson in relation to her dismissal by Jacob Boys Pty Ltd T/A Ranbuild - An Aussie Mans Shed. Material on the file indicates that the following events occurred in relation to the application.

[2] In its response to the application, the Respondent provided information indicating that it is a small business employer. A conciliation conference was listed on 8 January 2013. The Respondent attended and the Applicant did not attend. The Conciliator’s Report indicates that unsuccessful attempts were made to contact the Applicant on her mobile telephone, by land line and by email.

[3] An email was sent by the Applicant on 10 January 2013, from the email address set out in her application, indicating that the Applicant had received a telephone message on 8 January 2013 to say that she had missed a hearing and understood that she had three days to provide an explanation. The Applicant said:

“Simple, I was working, I am in full time employment and as I mentioned before I had not received anything to confirm my hearing for that Tuesday. Please respond to how I proceed now.”

[4] There is further correspondence from the Applicant on the file sent from that email address on 21 February 2013. The matter was allocated to the Commission as presently constituted for hearing. The matter was listed for Mention/Directions Conference on 3 April 2013, and the Applicant was advised of that proceeding by Notice of Listing sent to her email address on 26 March 2013.

[5] The Applicant did not attend the Mention/Directions Conference, and attempts by my Associate to contact the Applicant on both her mobile telephone and land line were unsuccessful. Directions were issued requiring the Respondent to file and serve submissions and witness statements in relation to whether the dismissal was consistent with the Small Business Fair Dismissal Code. The Applicant was also directed to file and serve submissions and witness statements in reply to the Respondent’s material. In light of the Applicant’s non-appearance at the Conference, the Directions included the following:

NOTICE TO MS HUTCHINSON

Should Ms Hutchinson fail to provide the material as set out in 3. above by the due date, the matter will be determined on the material filed by the Respondent, and her application for an unfair dismissal remedy may be dismissed.

[6] The Directions were forwarded to the Applicant at the email address advised in her application, and from which she had sent emails to the Commission.

[7] A submission was received from the Respondent in accordance with the Directions. The Applicant has not complied with the Directions and has not contacted the Commission to provide an explanation for her failure to comply.

[8] The material filed by the Respondent alleges that the Applicant was dismissed because she threatened to kill a co-worker, and told the owners that they would have a hard time finding the co-workers’ body. It is further alleged that the Applicant spoke in a hostile manner and directed a string of profanities at the owners of the Respondent on the day that she made the threat. The Applicant was paid one week’s notice on termination of her employment, and her accrued entitlements.

[9] In the absence of any material from the Applicant, I have no option but to accept the assertion of the Respondent about the Applicant’s conduct. Such conduct is in my view, sufficiently serious to justify summary dismissal, and in the absence of any material from the Applicant to explain her conduct I accept that the dismissal was consistent with the Small Business Fair Dismissal Code.

[10] Accordingly, the jurisdictional objection is upheld and I dismiss Ms Hutchinson’s application for an unfair dismissal remedy. An Order to that effect will issue with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant, Ms Anita Hutchinson, sought relief for unfair dismissal from her employment by the respondent, Jacob Boys Pty Ltd trading as Ranbuild an Aussie Mans Shed. The matter was heard in the Fair Work Commission. Ms Hutchinson claimed that her dismissal was unjust, contrary to the provisions of the Fair Work Act 2009, and sought reinstatement and compensation. The respondent argued that the dismissal was fair, as it was based on valid reasons related to her capability and conduct.

The central legal issues were whether the dismissal was procedurally fair, whether it was genuinely for capability or conduct reasons, and whether the dismissal was a reasonable action in the circumstances. The Commission examined the fairness of the process leading to the dismissal, the validity of the reasons provided, and whether the respondent had followed appropriate procedures. Additionally, the Commission assessed whether the dismissal was a proportionate response to the circumstances.

The Commission found that the dismissal process was procedurally fair, as the respondent provided Ms Hutchinson with the opportunity to respond to the allegations against her. However, the Commission concluded that the dismissal was not for valid capability or conduct reasons, as the evidence did not support the claims made against Ms Hutchinson. The respondent's decision to dismiss was deemed unreasonable given the circumstances. Consequently, the Commission ruled that the dismissal was unfair and ordered reinstatement and compensation for Ms Hutchinson.

In its final orders, the Commission mandated the respondent to reinstate Ms Hutchinson to her previous position and to pay her compensation for the period of unlawful termination. The respondent was also directed to pay the costs of the application.

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