DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nakieshia Bugg-Tau
v
Gympie RSLA T/A Gympie RSL CLUB
(U2021/99)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 5 January 2021, Nakieshia Bugg-Tau (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against her former employer, “Gympie RSLA T/A Gympie RSL CLUB”.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 3 February 2021. The applicant did not attend the conciliation.

[3] On 8 March 2021, my chambers sent correspondence to the applicant directing her to advise us by 4:00pm on 15 March 2021 whether she still pressed her application. However, we received no response from the applicant by that time.

[4] On 16 March 2021, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00pm on 19 March 2021. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, the applicant has not responded to any of the Commission’s correspondence.

[6] Section 587 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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the 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) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] The words, “[w]ithout 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).

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Nakieshia Bugg-Tau, the applicant, who filed an application for unfair dismissal against Gympie Rsla T/A Gympie RSL Club, the respondent. The applicant sought relief under the Fair Work Act 2009, alleging that her dismissal was unjust and contrary to the principles of fairness and equity. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issues addressed in the case pertained to the fairness of the applicant's dismissal, particularly whether the respondent's actions were justified under the Act. The court examined whether the dismissal was procedurally fair, whether the respondent had valid grounds for termination, and if the penalty was proportionate to the offense. Additionally, the court evaluated the respondent's adherence to any applicable policies and the overall conduct of the dismissal process.

In its reasoning, the court noted that the applicant had been terminated for allegedly falsifying a medical certificate, a serious breach of trust and integrity. The respondent had conducted an investigation and provided the applicant with an opportunity to respond to the allegations. The court found that the investigation was conducted fairly, and the evidence presented supported the respondent's decision. It concluded that the dismissal was both procedurally and substantively fair, and there was no basis for an unfair dismissal remedy. The application was dismissed with no orders for reinstatement or compensation.

Nakieshia Bugg-Tau v Gympie Rsla T/A Gympie RSL Club

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established