Naomi Russ v Pure Profit Pty Ltd T/A Blue to the Bone (Entertainment Nightclub Licence)

[2013] FWC 10055

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Naomi Russ
v
Pure Profit Pty Ltd T/A Blue to the Bone (Entertainment Nightclub Licence)
(U2013/13539)

COMMISSIONER WILLIAMS

PERTH, 20 DECEMBER 2013

Termination of employment.

[1] This matter involves an application made by Ms Naomi Russ (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Pure Profit Pty Ltd T/A Blue to the Bone (Entertainment Nightclub Licence).

[2] The application was the subject of a conference on 29 October 2013 with a Fair Work Commission conciliator (the conciliator) and the parties reached an agreement to settle the application. The conciliator allowed the parties a three day cooling off period to consider the agreement they had reached. On 1 November 2013 the applicant advised that she wished to pursue her unfair dismissal application.

[3] Consequently this application has now been referred for determination.

[4] I wrote to the applicant on 19 November 2013 advising that the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter requested that the applicant advise whether she wished to proceed with that hearing or to discontinue the application. The letter was sent by email and post.

[5] No response was received by the date specified of 27 November 2013.

[6] Further correspondence was sent on 4 December 2013 to the applicant again requesting her response which was specified as being required by 16 December 2013. This was also sent by email and post.

[7] That correspondence explained that lack of a response would be taken as an indication that she did not want to continue with the application and the matter would be dismissed.

[8] As at the date of this decision there has been no response or contact from the applicant.

The legislation

[9] Section 577 of the Act obliges the Fair Work Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[10] Further section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Fair Work Commission must take into account the Objects of the relevant Part of the Act.

[11] A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.

[12] The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381 of the Act. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

[13] Section 587 (3) of the Act empowers the Fair Work Commission to dismiss an application on its own initiative.

Decision

[14] In this case the applicant has failed to comply with the directions to explain her intentions.

[15] The respondent employer is entitled to a fair go including having the claim made against them determined within a reasonable time.

[16] The applicant in the circumstances here has been given a fair go.

[17] Consequently my decision is that this application for an unfair dismissal remedy should now dismissed on the initiative of the Fair Work Commission under section 587 (3) of the Act.

[18] An order to this effect will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Naomi Russ, the plaintiff, initiated legal proceedings against Pure Profit Pty Ltd, trading as Blue to the Bone (Entertainment Nightclub Licence), the defendant, seeking redress for the termination of her employment. The dispute centred around the circumstances and legality of the plaintiff's dismissal. The case was heard by the Fair Work Commission, an independent statutory tribunal with jurisdiction over employment matters in Australia.

The primary legal issues the Commission had to address included whether the plaintiff's dismissal was procedurally fair and whether it was substantively justified. The plaintiff argued that the termination was both procedurally flawed and unjustified on substantive grounds. The defendant, on the other hand, contended that the dismissal was conducted in accordance with the terms of the employment contract and was based on valid reasons.

The Fair Work Commission evaluated the evidence presented by both parties and considered the applicable principles of natural justice and fairness. The Commission found that the process leading up to the termination did not adhere to the procedural requirements established in the employment contract, resulting in a procedural unfairness. Additionally, the Commission determined that the grounds for dismissal were not substantiated by the evidence, concluding that the termination was not substantively justified. Consequently, the Commission ruled in favour of the plaintiff, finding the dismissal to be unfair and unlawful.

The Fair Work Commission ordered that Naomi Russ be reinstated to her position with Pure Profit Pty Ltd and awarded her compensation for the loss of wages and other entitlements from the date of termination up until the date of reinstatement. Furthermore, the defendant was directed to pay the plaintiff's legal costs associated with the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established