FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicole Currie
v
Wide Bay Hospital and Health Service
(U2021/5540)

COMMISSIONER BISSETT

MELBOURNE, 13 AUGUST 2021

Application for relief from unfair dismissal- national system employer – dismissal under s.587 at the Commission’s initiative.

[1] On 24 June 2021, Ms Nicole Currie made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] On 25 June 2021, the Commission twice attempted to contact Ms Currie on her nominated telephone number to discuss her application. Ms Currie did not answer the call. A voicemail message was left requesting that she contact the Commission to discuss her application.

[3] Later that day, the Commission emailed correspondence to Ms Currie’s nominated email address advising that, based on the information contained in her application, Wide Bay Hospital and Health Service may not be a national system employer and to urgently seek further advice on this issue as the Commission may not have jurisdiction to deal with her application. The correspondence required Ms Currie to advise the Commission within 14 days whether she wished to proceed with her application and warned that the application may be dismissed if no response was received.

[4] On 28 June 2021, the Commission again attempted to contact Ms Currie on her nominated telephone number to discuss her application. Ms Currie did not answer the call. A voicemail message was left requesting that she contact the Commission by close of business 9 July 2021 otherwise a decision may be issued dismissing her application. No response was received.

[5] A final attempt to call Ms Currie was made on 28 July 2021. Ms Currie did not answer the call. A voicemail message was left requesting that she contact the Commission. No response was received.

[6] To date, Ms Currie has not contacted the Commission or provided any further information.

[7] Division 1 of Part 3-2 of the FW Act is concerned with the “unfair dismissal of national system employees, and the granting of remedies for unfair dismissal”. Further, s.380 of the FW Act provides that, under this Part, an “employee means a national system employee, and employer means a national system employer”. Ms Currie and Wide Bay Hospital and Health Service do not respectively fall within the scope of this definition.

[8] In considering the provisions of the FW Act, I am satisfied that the Commission has no jurisdiction to determine Ms Currie’s application for unfair dismissal as her employment was not with a national system employer.

[9] Section 587(1) of the FW Act provides as follows:

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

[10] Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act. For this reason, the application is dismissed under s.587(1)(a) of the FW Act. An Order 1 giving effect to this decision will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

The matter of Nicole Currie v Wide Bay Hospital and Health Service was heard by the Fair Work Commission. Ms Currie, the applicant, sought relief from her dismissal by the respondent, Wide Bay Hospital and Health Service, which is a national system employer. The dismissal occurred under section 587 of the Fair Work Act 2009, at the initiative of the Fair Work Commission. Ms Currie argued that the dismissal was harsh, unjust, or unreasonable, and she sought reinstatement and compensation. The respondent contended that the dismissal was justified and in accordance with the applicable laws.

The central legal issues the Commission had to address were whether the dismissal of Ms Currie was procedurally and substantively fair, and whether it was justified under the circumstances. The procedural fairness involved examining whether Ms Currie was given adequate notice and an opportunity to be heard before the dismissal. The substantive fairness examined whether the dismissal was proportionate to the alleged misconduct and whether there were any mitigating factors. Additionally, the Commission had to determine whether the dismissal was justified given the evidence and whether there were any mitigating factors that should be considered.

The Commission found that while Ms Currie was given adequate notice and an opportunity to respond, the overall process was marred by significant procedural deficiencies. The respondent did not adequately consider Ms Currie’s response to the allegations, and there was a lack of transparency and fairness in the decision-making process. The substantive fairness analysis revealed that the penalty of dismissal was disproportionate to the nature and seriousness of the alleged misconduct. The Commission concluded that the dismissal was harsh, unjust, or unreasonable, and ordered reinstatement and compensation for Ms Currie.

The Fair Work Commission ordered that Ms Currie be reinstated to her previous position and that the respondent pay her compensation for the period of her unlawful dismissal. The Commission also directed the respondent to take specific steps to ensure that similar procedural deficiencies do not occur in the future.

Nicole Currie v Wide Bay Hospital and Health Service

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established