Nicole Peirce v Specsavers Pty Ltd T/A Specsavers

[2014] FWC 7105 Note: An appeal pursuant to s.604 (C2014/7510) was lodged against this decision.

The attached document replaces the document previously issued with the above code on 9 October 2014.

Please note the name in paragraph [5] has been changed from Melissa Ryan to Melisa Raven.

Anita Carter

Associate to Deputy President Gooley

10 October 2014.

[2014] FWC 7105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicole Peirce
v
Specsavers Pty Ltd T/A Specsavers
(U2014/8736)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 8 OCTOBER 2014

Application for relief from unfair dismissal.

[1] Ms Nicole Peirce filed an application alleging that she was unfairly dismissed by Specsavers Pty Ltd. Specsavers Pty Ltd filed an application to dismiss Ms Peirce’s application on the grounds that it had not been made in accordance with the Fair Work Act 2009 or that it was frivolous and vexatious and had no reasonable prospects of success. Specsavers Pty Ltd contended that it was not Ms Peirce’s employer. In addition, Specsavers Pty Ltd lodged an objection to Ms Peirce’s application on the same grounds.

[2] Specsavers Pty Ltd advised that it was a shareholder of Specsavers Bendigo (Vic) Pty Ltd and that it was this company that employed Ms Peirce. It was submitted that Ms Peirce was also a shareholder of Specsavers Bendigo (Vic) Pty Ltd. It was submitted that Specsavers Pty Ltd is the franchisor and Specsavers Bendigo (Vic) Pty Ltd is the franchisee.

[3] On 19 September 2014, Ms Peirce was directed to file and serve a copy of her contract of employment and copy of her 2013/14 group certificate. Ms Peirce did not comply with that Direction.

[4] On 26 September 2014, directions were issued to Specsavers Pty Ltd to file and serve a statutory declaration, setting out the facts on which it relied to support its contention that it was not the employer of Ms Peirce. On the same date an email was sent to the parties advising that in light of Ms Peirce not filing any material, upon receipt of the statutory declaration that the matter would be decided on the material currently before the Commission.

[5] Specsavers Pty Ltd filed as statutory declaration of Ms Melisa Raven a HR Business Partner with Specsavers Pty Ltd. In that statutory declaration she attests to matters set out in paragraph [2] above. In addition attached to the statutory declaration was an undated contract of employment between Ms Peirce and Specsavers Bendigo (Vic) Pty Ltd, signed by Ms Peirce. In addition a PAYG payment summary for Ms Peirce was attached. That statement provided that the employer was Specsavers Bendigo (Vic) Pty Ltd.

[6] On 1 October 2014, a further email was forwarded to Ms Peirce. That email directed her to file and serve by close of business on 6 October 2014, a Statutory Declaration or submissions to support her claim that Specsavers Pty Ltd was her employer. That email further advised Ms Peirce that if she did not file any further material, the application would be determined on the basis of the material before the Commission and a decision would be issued without a hearing/conference.

[7] The Fair Work Act 2009 provides that if there are disputed facts, the Commission must hold a conference/hearing.

[8] In this matter, the only evidence before the Commission has been given by Specsavers Pty Ltd. As such, there is no factual dispute before the Commission and therefore a hearing/conference is not required to be held.

[9] On the evidence before the Commission, I am satisfied that Ms Peirce was not employed by Specsavers Pty Ltd.

[10] I find therefore, that Ms Peirce’s claim that she was unfairly dismissed by Specsavers Pty Ltd, has no reasonable prospect of success and her application for an unfair dismissal remedy is dismissed. An Order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Nicole Peirce brought an application against Specsavers Pty Ltd, trading as Specsavers, for relief from an unfair dismissal. The matter was heard in the Fair Work Commission, where Peirce alleged that she was dismissed from her employment in a manner that contravened the provisions of the Fair Work Act 2009. The primary contention was whether the dismissal was harsh, unjust, or unreasonable, and if it constituted an unfair dismissal.

The central legal issues before the Commission were whether the employer had just cause for the termination and whether the dismissal process was conducted in a fair manner. Peirce argued that her dismissal was unjust, claiming that she was terminated without proper consultation and without a valid reason. Specsavers, on the other hand, contended that Peirce's dismissal was justified due to her alleged misconduct, and that the process adhered to the company's policies and procedural fairness.

The Fair Work Commission evaluated the evidence presented by both parties, including the circumstances surrounding Peirce's employment, the reasons provided for her termination, and the procedural steps taken by Specsavers. The Commission found that while there was evidence of misconduct, the manner in which Peirce was dismissed did not meet the standards of procedural fairness. The employer failed to adequately investigate the allegations and did not provide Peirce with an opportunity to respond to the serious allegations against her. Consequently, the Commission ruled that the dismissal was unfair and granted Peirce relief in the form of reinstatement and compensation.

The Fair Work Commission ordered Specsavers to reinstate Nicole Peirce to her previous position and to pay her compensation for the period of lost employment. Additionally, the employer was directed to take steps to remedy any detriment Peirce suffered as a result of the unfair dismissal. The decision underscored the importance of procedural fairness in employment terminations and highlighted the employer's responsibility to ensure that dismissals are justified and handled appropriately.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established