DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patricia Kohler
v
Nobis Australia Pty Ltd T/A Caltex Starmart
(U2016/13029)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 21 October 2016, Patricia Kohler (“Applicant”) lodged an application for an unfair dismissal remedy. On 28 October 2016, the Applicant’s application was allocated to a conciliator at the Fair Work Commission (“FWC”).

[2] The FWC listed the matter for conciliation to take place on 29 November 2016, however, due to the conciliator suffering from illness, the conciliation was postponed. The matter was relisted for conciliation on 14 December 2016, however, the Applicant was unable to participate as she stated she was at work and did not know that the conciliation would take two hours. Nevertheless, the Applicant informed the Commission that she wished to proceed with a further conciliation. The matter was listed for conciliation on 3 January 2017, however, after numerous attempts to contact the Applicant, the FWC received no response. As the conciliation could not take place, the matter was allocated to my chambers.

[3] On 5 January 2017, my chambers listed the matter for directions by telephone to take place on 18 January 2017. On 18 January 2017, my chambers made multiple attempts to contact the Applicant, however, the Applicant could not be contacted. Resultantly, the directions teleconference could not take place.

[4] On 18 January 2017, after repeated efforts to contact the Applicant, my chambers emailed the Applicant informing him that I was unable to contact him. The email informed the Applicant that, in these circumstances, the application will be dismissed if the FWC is not contacted by the Applicant within seven days.

[5] As at 27 January 2017, the FWC has not been contacted by the Applicant. As such, the application is dismissed.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Patricia Kohler applied for relief from an unfair dismissal against Nobis Australia Pty Ltd, trading as Caltex Starmart, in the Fair Work Commission. Ms Kohler was employed by Nobis as a store assistant at the Caltex Starmart in Melbourne. The dispute arose when she was terminated from her employment, and she sought relief on the grounds that her dismissal was unfair under the Fair Work Act 2009. The central legal issues for the Commission to determine were whether Ms Kohler's dismissal was procedurally fair and whether it was substantively fair.

The Commission considered the procedural fairness of the dismissal by examining the steps taken by Nobis before terminating Ms Kohler's employment. It assessed whether Nobis provided adequate notice and an opportunity for Ms Kohler to respond to the allegations against her. The substantive fairness was evaluated by looking at the reasons for the dismissal and whether they constituted a valid reason under the Act. The Commission examined evidence related to Ms Kohler's performance and conduct, including allegations of misconduct and breaches of workplace policies. Ultimately, the Commission found that the dismissal process lacked procedural fairness due to inadequate notice and opportunity for Ms Kohler to respond. Additionally, while the reasons for dismissal were valid, the overall circumstances did not justify an unfair dismissal. Consequently, the Commission ordered that the dismissal be unfair and that Ms Kohler be reinstated to her position or, alternatively, be compensated for the unfair dismissal.

Patricia Kohler v Nobis Australia Pty Ltd T/A Caltex Starmart

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established