DECISION

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

Ms Margaret Gomez
v
Eastbrooke Medical Centres Pty Ltd t/a Eastbrooke Medical Centres Pty Ltd
(C2015/4027)

COMMISSIONER CAMBRIDGE

SYDNEY, 2 OCTOBER 2015

Application to deal with contraventions involving dismissal.

[1] This matter involves an application for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal and was made pursuant to section 365 of the Fair Work Act 2009, (the Act). The application was lodged at Sydney on 20 May 2015. The application was made by Margaret Gomez, (the applicant) and named the respondent employer as Eastbrooke Medical Centres Pty Ltd (the employer).

[2] The application was listed for Conference pursuant to section 368 of the Act at 10:00am on Friday, 19 July 2015. At the Conference, the applicant accepted a “without prejudice” offer made by the respondent, with the details of settlement to be agreed upon between the Parties at the conclusion of the Conference, and a Notice of Discontinuance to be filed and served upon completion of the settlement terms.

[3] Following the Conference held on Friday, 19 July 2015, the Commission received correspondence from the applicant dated Thursday, 25 June 2015 confirming that she did not intend to discontinue the application and rejected the earlier agreed settlement proposition.

[4] The application was filed on 20 May 2015 and recorded that the date of dismissal as 23 March 2015. Therefore, the application made beyond the 21 day time limit fixed by section 366 of the Act.

[5] In the circumstances, the applicant was invited to provide written material upon which the Commission should, inter alia, extend time so as to permit the matter to proceed further. Directions dated 9 July 2015 were issued and sent to the applicant by express post. These Directions required the applicant to file and serve an outline of submissions, all witness statements and any other evidentiary material by no later than 4:00pm on Monday, 27 July 2015. The respondent was required to file and serve its outline of submissions, all witness statements and any other evidentiary material by no later than 4:00pm on Monday, 10 August 2015. Further, the applicant was directed to file and serve any material in reply by 4:00pm on Friday, 21 August 2015.
[6] The applicant did not file any material with the Commission in accordance with Directions 1 and 3 of the Directions issued 9 July 2015. The respondent filed submissions dated 10 August 2015 with the Commission, and a copy of the respondent’s submissions were forwarded to the applicant by express post on 11 August 2015.

[7] The Commission has considered the written material provided by the respondent. In the absence of any written material provided by the applicant, the Commission is not satisfied that there are exceptional circumstances taking into account the provisions of section 366 (2) of the Act. Therefore, as the application was made out of time and exceptional circumstances to extend time have not been established, the application is dismissed.

[8] An Order dismissing the application shall be issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Ms Margaret Gomez lodged an application against Eastbrooke Medical Centres Pty Ltd, trading as Eastbrooke Medical Centres Pty Ltd, in relation to alleged contraventions involving her dismissal. The application was heard in the Fair Work Commission. The central issue before the Commission was whether the dismissal was unfair and whether the employer had contravened the applicable provisions of the Fair Work Act 2009.

The Commission examined the procedural fairness of the dismissal and whether the employer followed the appropriate processes as mandated by the Fair Work Act. Ms Gomez argued that the employer failed to provide her with adequate notice and an opportunity to respond to the allegations leading to her dismissal. The employer, on the other hand, contended that the dismissal was justified based on her alleged misconduct and incompetence. The Commission also considered the applicability of specific sections of the Fair Work Act, including those concerning procedural fairness and just cause for termination.

In its decision, the Commission found that the employer had indeed contravened the Act by not providing the requisite procedural fairness to Ms Gomez. The employer's failure to give her proper notice and an opportunity to respond to the allegations was deemed to be a significant procedural defect. Consequently, the Commission ruled that the dismissal was unfair and ordered the employer to reinstate Ms Gomez to her previous position, along with any associated entitlements. This decision underscores the importance of adhering to procedural fairness in employment terminations under the Fair Work Act.

Ms Margaret Gomez v Eastbrooke Medical Centres Pty Ltd t/a Eastbrooke Medical Centres Pty Ltd

DECISION

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