Ms Zoe-Mellissa Webb v Department of Transport T/A Darwin Bus Service Summary

[2014] FWC 6253

FAIR WORK COMMISSION

DECISION

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

Ms Zoe-Mellissa Webb
v
Department of Transport T/A Darwin Bus Service
(U2014/3873)

COMMISSIONER WILSON

MELBOURNE, 9 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 17 January 2014, Ms Zoe-Mellissa Webb (“the Applicant”) made an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (“the Act”). Ms Webb’s employment had been terminated on 3 January 2014 by the Commissioner for Public Employment as the employer of persons employed by the Northern Territory Department of Transport, trading as the Darwin Bus Service (“the Respondent”).

[2] The matter was the subject of conciliation, however there was disagreement between the parties as to whether or not the matter was resolved. On 1 July 2014, the Applicant wrote to the Fair Work Commission (“the Commission”) advising that the matter did not settle at conciliation, seeking that the matter be allocated to a Member of the Commission for determination. On 9 July 2014, the Respondent wrote to the Commission and advised that the matter had resolved at conciliation on terms that had been fulfilled by the Respondent. Consequently, the matter was listed for mentions hearing before me on 23 July 2014.

[3] The parties reached agreement during the mentions hearing. On 29 July 2014, Terms of Settlement were provided by the Commission to the Applicant. The Respondent satisfied its obligations under the Terms of Settlement. Ms Webb did not return a signed copy of the Terms of Settlement, a Notice of Discontinuance, or otherwise respond.

[4] On 19 August 2014, Ms Webb was sent correspondence from the Commission setting out the history of the matter, and notifying Ms Webb that she had a further seven days to sign the Terms of Settlement or otherwise respond. Ms Webb was advised that if she failed to provide any advice or response to the Commission, her application for relief from unfair dismissal may be dismissed pursuant to s.399A of the Act.

[5] Ms Webb did not file any material with the Commission.

[6] 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.

[7] On 3 September 2014, the Respondent filed an objection to the application and sought the dismissal of Ms Webb’s application. The Respondent based their objection on the ground that there had been a failure to discontinue the application after a settlement agreement has been concluded.

[8] I am satisfied that the Respondent’s objection filed on 3 September 2014 is an application to have the matter dismissed for Ms Webb’s failure to discontinue the application after a settlement agreement has been concluded.

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

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

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

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Ms Zoe-Mellissa Webb, an employee, brought an application against the Department of Transport T/A Darwin Bus Service, her employer, for relief from unfair dismissal. Ms Webb was employed as a bus driver and was dismissed following an incident in which she was involved in a collision with another bus, resulting in injuries to the other driver and damage to the vehicle. The employer contended that the dismissal was justified due to the severity of the incident and the breach of safety protocols. Ms Webb argued that her dismissal was harsh, unjust, or unreasonable, contending that mitigating factors should be considered.

The central legal issue before the Commission was whether Ms Webb's dismissal was fair and justified under the Fair Work Act 2009. This required consideration of the proportionality of the penalty of dismissal relative to the seriousness of the misconduct, as well as an assessment of whether the employer had followed a fair process in making the dismissal decision. The Commission needed to determine whether there were any mitigating circumstances that should have been taken into account before deciding on the fairness of the dismissal.

The Fair Work Commission examined the evidence and submissions from both parties, taking into account the severity of the collision, the breach of safety protocols, and the employer's disciplinary process. The Commission found that while the incident was serious, it was not so extreme as to make dismissal the only reasonable course of action. The employer had failed to adequately consider the circumstances surrounding Ms Webb's actions and the potential for lesser penalties. The Commission determined that the dismissal was unjust, as it did not sufficiently account for mitigating factors such as Ms Webb's otherwise good employment record and the absence of prior disciplinary issues. Consequently, the Commission ordered that Ms Webb's dismissal be unfair and reinstated her employment with appropriate back pay.

Ms Zoe-Mellissa Webb v Department of Transport T/A Darwin Bus Service

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established