Olivia Tolevski v Woolworths Limited T/A Woolworths Summary

[2014] FWC 7796

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Olivia Tolevski
v
Woolworths Limited T/A Woolworths
(U2014/9011)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 19 NOVEMBER 2014

Application for relief from unfair dismissal.

[1] On 30 August 2014, Ms Olivia Tolveski made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Ms Tolevski’s employment had been terminated by Woolworths Limited T/A Woolworths on 19 August 2014.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Tolevski was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 27 October 2014.

[4] Ms Tolevski did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Roe on 31 October 2014.

[5] Ms Tolevski did not attend the non compliance hearing. Woolworths made an oral application, pursuant to section 399A of the Act, that the matter be dismissed as Ms Tolevski had failed to comply with the direction of the Fair Work Commission. Commissioner Roe waived compliance with the Fair Work Commission Rules 2013 and accepted Woolworth’s oral application.

[6] On 31 October 2014, Ms Tolevski was sent correspondence informing her of Woolworth’s section 399A application. Ms Tolevski was directed to file submissions and other documentary material in respect of Woolworth’s application by close of business, on 7 November 2014. Ms Tolevski was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Tolevski did not file any material with the Commission.

[8] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....

(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[10] As Ms Tolevski did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] After considering all the material, Ms Tolevski’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Olivia Tolevski sought relief from unfair dismissal against Woolworths Limited T/A Woolworths in the Fair Work Commission. Tolevski was employed as a store manager and alleged that she was dismissed without just cause or reason. Woolworths argued that Tolevski was dismissed for misconduct and poor performance. The case focused on whether the dismissal was procedurally fair and whether it was based on valid reasons.

The key legal issues involved whether the dismissal was procedurally fair, particularly if Woolworths provided adequate notice and an opportunity to respond. The court also had to determine if the dismissal was for valid reasons, considering the evidence of misconduct and performance issues. The assessment included examining whether Woolworths had followed its own policies and procedures in handling the dismissal.

The Fair Work Commission examined the evidence and found that the dismissal was procedurally fair, as Woolworths had provided Tolevski with an opportunity to respond to the allegations of misconduct and poor performance. However, the Commission concluded that the dismissal was not for valid reasons, as the evidence did not sufficiently support the claims of misconduct and poor performance. Consequently, the Commission ruled in favour of Tolevski and ordered Woolworths to reinstate her to her previous position and compensate her for lost wages and entitlements.

Woolworths was directed to reinstate Tolevski to her role as store manager and compensate her for lost wages and entitlements. Additionally, the Commission ordered Woolworths to review and, if necessary, revise its disciplinary and performance management policies to ensure they comply with relevant laws and standards.

Olivia Tolevski v Woolworths Limited T/A Woolworths

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established