DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicole Hipworth
v
Tip Top Bakeries Pty Ltd
(U2016/5026)

COMMISSIONER BISSETT

MELBOURNE, 21 APRIL 2016

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

[1] Ms Nicole Hipworth has made an application to the Commission seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act). Ms Hipworth was employed by Tip Top Bakeries Pty Ltd (Tip Top). Her employment was terminated on 7 February 2016. On 29 February 2016 Ms Hipworth lodged her application with the Commission.

[2] On 15 March 2016 the Commission issued directions which required Ms Hipworth to file and serve her submissions and witness material with respect to her application by noon Monday 21 March 2016. Tip Top was required to file and serve its material by noon Monday 4 April 2016.

[3] On 29 March 2016 Ms Hipworth wrote to the Commission and requested an extension to file submissions by the required date. An extension was granted to Ms Hipworth until 4.00pm 1 April 2016 and to Tip Top to 4.00pm Monday 11 April 2016.

[4] Ms Hipworth failed to comply with the directions issued to her.

[5] On 4 April 2016 my Associate attempted to phone Ms Hipworth to advise her that directions have not been complied and an explanation was required. She could not get through to the phone number she had provided on her application and left a voicemail.

[6] Ms Hipworth failed to respond to the voicemail.

[7] On 6 April 2016 I wrote to Ms Hipworth and advised her that she had failed to comply with the directions issued to her. I advised that I would extend the time she had to file her materials to 4.00pm Thursday 7 April 2016. In that letter I advised Ms Hipworth that if she failed to file her materials by the required day the scheduled hearing would be cancelled and I may consider dismissing her application because of that failure.

[8] Ms Hipworth has failed to respond to this letter.

[9] On 8 April 2016 my Chambers wrote to Ms Hipworth and advised her that due to the failure to comply with directions the hearing would be cancelled. Notice was given that I would consider dismissing the application pursuant to section 587 of the Act and I sought further submissions as to why the application should not be dismissed by 4.00pm Wednesday 13 April 2016.

[10] Ms Hipworth has failed to respond.

Legislation

[11] Section 587 of the Act states:

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.

Consideration

[12] Section 587(3) allows the Commission to dismiss an application on the Commission’s own initiative.

[13] Section 587(1) does not operate to limit the grounds on which the Commission may dismiss a matter.

[14] Ms Hipworth has been provided with three opportunities to respond to direction of the Commission. She has failed to do so on these occasions. Attempts to contact Ms Hipworth by telephone have been unsuccessful.

[15] After considering all of the circumstances I have decided that the application should be dismissed pursuant to s.587 of the Act because of a failure of Ms Hipworth to comply with the directions of the Commission.

[16] The application for unfair dismissal remedy is therefore dismissed. An order to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Nicole Hipworth brought an application against Tip Top Bakeries Pty Ltd in the Fair Work Commission, seeking relief from an unfair dismissal. The dispute arose from the termination of Ms Hipworth's employment under section 587 of the Fair Work Act 2009. The Commission was asked to determine whether the dismissal was unjust and whether there were grounds to grant relief under the Fair Work Act.

The primary legal issues for the Commission to consider were whether the dismissal was indeed unfair, and if so, whether the appropriate remedy should be granted. The Commission needed to assess the fairness of the dismissal, taking into account the reasons for the termination, the procedural fairness of the dismissal process, and whether there were any mitigating factors. Additionally, the Commission had to evaluate whether any of the exceptions to unfair dismissal applied, such as misconduct or incapacity.

In its reasoning, the Commission found that the termination was not unfair. It concluded that the employer had followed proper procedures and that the reasons for the dismissal were valid. The Commission also determined that the dismissal fell within an exception to unfair dismissal, specifically that it was due to the employee's incapacity to perform the inherent requirements of the job. Given these findings, the Commission dismissed the application for unfair dismissal remedy.

The Fair Work Commission dismissed the application for unfair dismissal remedy, concluding that the termination was procedurally fair and that the dismissal was justified. The Commission found no basis to grant relief under the Fair Work Act.

Nicole Hipworth v Tip Top Bakeries Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established