DECISION

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

Ms Leonia Vaili
v
The Veals Pty Ltd
(U2018/8550)

COMMISSIONER RIORDAN

SYDNEY, 22 JANUARY 2019

Application for an unfair dismissal remedy.

[1] Ms Leonia Vaili (the Applicant) lodged an unfair dismissal application with the Fair Work Commission (the Commission) on 20 August 2018.

[2] Ms Vaili was employed by The Veals Pty Ltd t/a Orielton Takeaway (the Respondent) between November 2016 and August 2018.

[3] A notice of listing was issued on 17 October 2018 advising that the matter was listed for Conference and Directions by telephone on 22 October 2018. Ms Vaili failed to participate in the teleconference. The Respondent was represented by Ms Veal.

[4] On 23 October 2018 a formal letter was emailed to the Applicant in relation to her non-attendance. The Applicant failed to respond to this correspondence.

[5] On 13 December 2018, a further email was sent to the Applicant advising that she was requested to reply to the correspondence issued by the Commission on 23 October 2018 but had failed to comply. The Applicant was given a further seven days to respond and was advised that, failure to do so, may lead to her application being dismissed.

[6] To date, the Commission has not received any correspondence or a return phone call from Ms Vaili.

Relevant legislation

[7] Section 399A of the Fair Work Act, 2009 (the Act) states:

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

[8] Section 587(1) 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

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

(a) on its own initiative; or

(b) on application.

Conclusion

[9] Ms Vaili has failed to comply with any of the Directions given by the Commission.

[10] After considering all circumstances in this matter, I have decided to dismiss Ms Vaili’s unfair dismissal application in accordance with section 587(3)(a).

[11] I so Order.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Ms Leonia Vaili, the applicant, brought an application against The Veals Pty Ltd, the respondent, in the Fair Work Commission. The applicant sought relief on the basis that her dismissal was unfair, constituting an invalid termination of her employment under the Fair Work Act 2009. The Veals Pty Ltd opposed the application, contending that the dismissal was justified and in accordance with the relevant legislative framework. The case before the Commission was to determine whether the applicant's dismissal was indeed unfair and to what extent the respondent was liable for any remedy.

The primary legal issues before the Commission included whether the dismissal was for a valid reason, whether the respondent followed a fair process, and whether there were any mitigating factors that should be taken into account. The applicant argued that the dismissal was not only without cause but also procedurally flawed, while the respondent maintained that the termination was both warranted and carried out in compliance with company policy and procedural fairness. The Commission had to assess the evidence and arguments presented by both parties to ascertain the legitimacy of the dismissal and the fairness of the process.

The Fair Work Commission, after considering the evidence and submissions, found that the dismissal was indeed unfair. The Commission determined that the respondent had failed to follow a fair process, particularly in not providing adequate opportunity for the applicant to respond to the allegations against her. Additionally, the Commission found that the dismissal was not supported by a valid reason. Consequently, the Commission ordered that the respondent reinstate the applicant to her former position and compensate her for the period of lost wages. The decision underscored the importance of procedural fairness in employment terminations and highlighted the consequences of failing to adhere to such principles.

Ms Leonia Vaili v The Veals Pty Ltd

DECISION

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established