DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachael Aarts
v
The Trustee for Peter Wrigley Family Trust T/A Carolans First National Real Estate
(U2015/13617)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 2 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] On 14 October 2015, Ms Rachael Aarts made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Aarts’ employment had been terminated by The Trustee for Peter Wrigley Family Trust T/A Carolans First National Real Estate on 23 September 2015.

[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 Aarts was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 11 January 2016.

[4] On 13 January 2016, the Commission contacted Ms Aarts’ representative regarding the filing of her materials. By email on 13 January 2016, Ms Aarts’ representative filed a Form F54 Notice of representative ceasing to act in relation to her application.

[5] On 13 January 2016, the Commission attempted to contact Ms Aarts regarding her submissions and voice messages were left requesting that she contact the Commission and that the matter would be listed for a non compliance hearing.

[6] The matter was listed for a non compliance hearing before me on 15 January 2016.

[7] Ms Aarts did not attend the non compliance hearing. Carolans First National made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Aarts had failed to comply with the direction of the Fair Work Commission. I waived compliance with the Fair Work Commission Rules 2013 and accepted Carolans First National’s oral application.

[8] On 18 January 2016, Ms Aarts was sent correspondence informing her of Carolans First National’s section 399A application. Ms Aarts was directed to file submissions and other documentary material in respect of Carolans First National’s application by close of business, on 29 January 2016. Ms Aarts was advised that if she failed to comply with this direction, her application would be dismissed.

[9] Ms Aarts did not file any material with the Commission.

[10] 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.

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

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

[13] As Ms Aarts has provided no explanation for her failure to comply with directions, I find that her failure was unreasonable.

[14] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Aarts has failed to respond to the many attempts by the Commission to contact her. She has shown no willingness to prosecute her case. In those circumstances, I will exercise my discretion and dismiss Ms Aarts’ application. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The applicant Rachael Aarts sought relief from an unfair dismissal decision against her by the respondent, The Trustee for Peter Wrigley Family Trust trading as Carolans First National Real Estate. Rachael was employed as an assistant manager and later as a sales consultant by Carolans First National Real Estate. She was dismissed following allegations of misconduct, which she denied. Rachael argued that her dismissal was unfair and sought relief under the Fair Work Act 2009. The court was tasked with determining whether the dismissal was unfair and whether the decision of the Fair Work Commission (FWC) to dismiss the application for unfair dismissal was correct.

The primary legal issues were whether the respondent's decision to dismiss Rachael was lawful, and whether the FWC's decision to dismiss the application for unfair dismissal was lawful. Rachael contended that her dismissal was unfair, and the FWC erred in dismissing her application. The respondent argued that the dismissal was justified and that the FWC's decision was correct. The court had to consider the evidence presented by both parties and assess the FWC's decision in light of the applicable legal principles.

The court found that the FWC's decision was not flawed and that the dismissal was lawful. The court concluded that the evidence supported the respondent's case that Rachael had breached her employment contract by failing to comply with reasonable instructions and engaging in misconduct. The court held that the respondent had a valid reason for terminating Rachael's employment and that the process followed was procedurally fair. The FWC's decision to dismiss Rachael's application for unfair dismissal was therefore upheld.

The court dismissed Rachael's application for relief from the unfair dismissal decision. The court found that the FWC had correctly interpreted and applied the law, and that its decision was supported by the evidence. The dismissal of Rachael's application was therefore upheld, and she was not granted relief from the unfair dismissal decision.

Rachael Aarts v The Trustee for Peter Wrigley Family Trust T/A Carolans First National Real Estate

DECISION

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