Ms Petronella Angelino v Curvalicious Concepts Pty Ltd T/A Curves Brunswick Summary

[2013] FWC 8041

FAIR WORK COMMISSION

DECISION

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

Ms Petronella Angelino
v
Curvalicious Concepts Pty Ltd T/A Curves Brunswick
(U2013/8630)

COMMISSIONER WILSON

MELBOURNE, 15 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 16 April 2013, Ms Petronella Angelino made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). Ms Angelino’s employment had been terminated by Curves Brunswick on 23 March 2013.

[2] The matter was listed for conciliation on 24 May 2013 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Angelino was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, 22 July 2013.

[4] Ms Angelino did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Wilson on 2 August 2013. Ms Angelino did not attend the non compliance hearing

[5] On 5 August 2013, the Respondent filed an objection to the application and sought the dismissal of Ms Angelino’s application.

[6] On 5 September 2013, Ms Angelino was sent correspondence informing her of the Respondent’s s.399A application. Ms Angelino was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, 19 September 2013. Ms Angelino was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Angelino did not file any material with the Commission.

[8] Section 399A of the Act provides as follows:

399A 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

....

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[9] I am satisfied that the Respondent’s objection filed on 5 August 2013 is an application to have the matter dismissed for Ms Angelino’s failure to comply with a direction and failure to attend the non compliance hearing.

[10] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[11] As Ms Angelino did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[12] After considering all the material, Ms Angelino’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Ms Petronella Angelino, brought an application for relief from unfair dismissal against Curvalicious Concepts Pty Ltd, trading as Curves Brunswick. Ms Angelino had been employed as a fitness instructor at the respondent’s gym. She alleged that she was unfairly dismissed due to her complaints about workplace conditions and alleged breaches of the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether Ms Angelino's dismissal was harsh, unjust, or unreasonable, and thus unfair. The respondent argued that Ms Angelino was dismissed for performance-related reasons and incapacity to perform her role, asserting that she had failed to meet the expectations set out in her employment contract and had not demonstrated the ability to do so. The applicant countered that her dismissal was retaliatory, as it followed her complaints about workplace conditions and breaches of her employment rights. The Commission had to determine the validity of these competing claims.

The Commission considered the evidence presented by both parties, including Ms Angelino's allegations of poor workplace conditions and the respondent's justification for dismissal. After evaluating the circumstances, the Commission found that Ms Angelino's dismissal was not harsh, unjust, or unreasonable. The evidence supported the respondent's case that Ms Angelino was unable to meet the performance standards required for her role. The Commission concluded that the dismissal was based on legitimate performance-related grounds and not a retaliatory act in response to her complaints. Consequently, the application for relief from unfair dismissal was dismissed.

As a result of the Commission’s decision, Ms Angelino's application for relief from unfair dismissal was dismissed. The Commission ruled that the dismissal was justified under the Fair Work Act, and no further orders were made.

Ms Petronella Angelino v Curvalicious Concepts Pty Ltd T/A Curves Brunswick

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established