Ms Leonie Simpson v KM Dubbo Pty Ltd Summary

[2024] FWC 2434

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Leonie Simpson
v

KM DUBBO PTY LTD

(C2024/4570)

DEPUTY PRESIDENT ROBERTS

SYDNEY, 6 SEPTEMBER 2024

Application to deal with contraventions involving dismissal

On 3 July 2024 Ms. Leonie Simpson (Applicant) filed an application under s.365 of the Fair Work Act 2009 (Act) alleging that she had been dismissed on 12 June 2024 by KM Dubbo Pty Ltd (Respondent) in contravention of Part 3-1, General Protections, of the Act.

The Respondent disputed the claim and said that the Applicant had not been dismissed by them but had left her employment of her own accord.

Where there is a contest as to whether the dismissal that is the subject of the application has occurred, this question must be determined before the powers to deal with the dispute conferred by s.368 of the Act can be exercised.[1] Directions were made for the filing of material on that issue and the matter was listed to be heard on 5 September 2024.

The Respondent belatedly filed submissions and witness statements in support of its objection that the Applicant was not dismissed. The Applicant did not file any material in response to the directions. Unsuccessful attempts were made to contact the Applicant to follow-up on the requirement to respond to the directions. There was nothing filed by the Applicant by 5 September 2024.

The Applicant failed to appear at the hearing on 5 September 2024. Attempts to contact the Applicant by telephone on that day were unsuccessful.

Having regard to the unchallenged material filed by the Respondent relating to the circumstances in which the Applicant’s employment came to an end, I conclude that the Applicant was not dismissed[2] by the Respondent on 12 June 2024. The Applicant’s employment came to an end on that day when she told the Respondent she did not want to come to work and did not thereafter attend work.

As the Applicant was not dismissed for the purposes of s.365, the Commission is unable to deal with the application.

The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Ms Jaipreet Kaur for the Respondent.

Hearing details:

10:00am AEST on Thursday 5 September 2024 by Microsoft Teams

[1] Coles Supply Chain v. Milford [2020] FCAFC 15.

[2] See s.386 of the Act.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter of Ms Leonie Simpson versus KM Dubbo Pty Ltd was heard by the Fair Work Commission. Ms Simpson filed an application under section 365 of the Fair Work Act 2009, alleging that she had been dismissed by KM Dubbo Pty Ltd in contravention of Part 3-1, General Protections, of the Act. The respondent disputed this claim, asserting that Ms Simpson had left her employment voluntarily. The central issue before the Commission was whether Ms Simpson had indeed been dismissed by KM Dubbo Pty Ltd or if she had terminated her employment on her own accord.

The court examined the evidence provided by the respondent and noted that the applicant had not responded to the directions to file material relevant to the dispute. Ms Simpson also failed to attend the hearing and could not be contacted. Based on the unchallenged evidence from the respondent, the Deputy President concluded that Ms Simpson had not been dismissed. Instead, her employment ended when she informed the respondent that she did not wish to continue working and subsequently did not return to work.

Given that the applicant was not dismissed, the Commission was unable to exercise its powers under section 368 of the Act. Consequently, the application was dismissed. This decision underscores the importance of compliance with procedural requirements in such applications and highlights the necessity for both parties to present their respective cases adequately.

Ms Leonie Simpson v KM Dubbo Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established