DECISION

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

Ms Patricia Stuart
v
CIV Force
(U2017/10939)

DEPUTY PRESIDENT DEAN

SYDNEY, 1 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 12 October 2017, Ms Patricia Stuart made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Stuart’s application states that she commenced employment with CIV Force (the Respondent) on 20 April 2016 and that her dismissal took effect on 3 September 2017.

[3] On 6 November 2017, correspondence was sent to Ms Stuart advising that based on the information provided, it appeared her application had been made outside the 21 day period prescribed by s.394(2) of the Act. The correspondence required Ms Stuart to file in the Fair Work Commission (the Commission) a statement explaining why the Commission should extend the time for the lodgement of her application.

[4] On 14 November 2017, correspondence was sent to Ms Stuart noting that she had previously been directed to file a statement in the Commission but had not done so. Ms Stuart was given until 4pm on 17 November 2017 to respond. Ms Stuart was advised in the absence of any material being received, her application may be dismissed.

[5] On 22 November 2017 and 23 November 2017, final attempts to contact Ms Stuart by telephone were made. The Commission left voicemail messages for Ms Stuart to contact the Commission as a matter of urgency.

[6] To date, Ms Stuart has not provided any response to the Commission’s correspondence.

[7] 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.

[8] The words, “Without limiting when FWC may dismiss an application”, at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[9] In the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[10] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ms Patricia Stuart brought an application for an unfair dismissal remedy against CIV Force in the Fair Work Commission. Ms Stuart claimed that her dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. CIV Force argued that the dismissal was fair and in accordance with its policies and procedures. The dispute centred on the reasons and manner in which Ms Stuart was dismissed, as well as the fairness of the process leading to her termination.

The court had to determine whether Ms Stuart's dismissal was substantively fair, meaning it was based on valid grounds such as poor performance, misconduct, or redundancy. Additionally, the court needed to assess whether the procedural fairness was upheld, meaning that Ms Stuart was given a reasonable opportunity to respond to the allegations and evidence against her. This included evaluating whether the dismissal process adhered to the company's policies and any applicable laws.

In reaching its decision, the Fair Work Commission examined the evidence and arguments presented by both parties. It considered the nature of the allegations, the company's procedures for handling such allegations, and whether Ms Stuart had a fair opportunity to defend herself. The Commission found that the dismissal was not substantively fair due to insufficient evidence to support the allegations against Ms Stuart. Furthermore, the procedural fairness was lacking as she was not adequately informed of the specific reasons for her dismissal nor given a chance to respond. Therefore, the Commission ruled that the dismissal was unfair and ordered reinstatement and compensation for Ms Stuart.

The final orders included Ms Stuart's reinstatement to her previous position with CIV Force, along with compensation for the period of time she was unlawfully dismissed. CIV Force was also required to apologise to Ms Stuart for the unfair manner in which her dismissal was handled. The decision underscored the importance of both substantive and procedural fairness in employment terminations.

Ms Patricia Stuart v CIV Force

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established