[2020] FWC 319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachel Louise Robinson
v
Eastcoast Beverages T/A Eastcoast Beverages
(U2019/12818)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 21 JANUARY 2020

Application for an unfair dismissal remedy – s 399A application made by employer – unfair dismissal application dismissed.

[1] This decision concerns an application made by Ashmara Pty Ltd T/A Eastcoast Food & Beverages (Respondent) pursuant to s 399A of the Fair Work Act 2009 (Cth) (Act) to dismiss the application for unfair dismissal remedy made by its former employee, Ms Rachel Robinson, pursuant to s 394 of the Act (Application).

Background

[2] Ms Robinson lodged her Application dated 14 November 2019 in the Fair Work Commission (Commission). In that Application, Ms Robinson contends that she was unfairly dismissed on 31 October 2019.

[3] Ms Robinson failed to participate in a conciliation conference on 8 January 2020. The matter was then assigned to my chambers.

[4] The matter was listed for a directions hearing, by telephone, on 17 January 2020. There was no appearance by or on behalf of Ms Robinson at that directions hearing.

[5] An email in the following terms was sent to Ms Robinson after the directions hearing on 17 January 2020:

“Dear Ms Robinson

This matter was listed for directions by telephone before Deputy President Saunders at 9am this morning pursuant to a Notice of Listing sent to the parties on 13 January 2020 at 2:39pm.

There was no appearance by or on behalf of you, the applicant, at the directions hearing. The respondent participated in the directions hearing.

This matter is now listed for a further directions hearing (by telephone) on Tuesday, 21 January 2020 at 10am. It is necessary for both parties to participate in this directions hearing. If you do not participate in the directions hearing (by telephone) on Tuesday, 21 January 2020 at 10am, your unfair dismissal application may be dismissed without further prior notice to you.

A notice of listing has been sent out and is also attached to this email.”

[6] There was no appearance by or on behalf of Ms Robinson at the directions hearing on 21 January 2020. My Associate attempted, without success, to contact Ms Robinson at the commencement of the directions hearing on 21 January 2020.

Application for dismissal

[7] During the directions hearing on 21 January 2020, the Respondent made an application pursuant to s 399A of the Act for the Application to be dismissed on the basis that Ms Robinson had failed to attend the conciliation on 8 January 2020, the directions hearing on 17 January 2020, and the directions hearing on 21 January 2020.

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

“(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

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

[9] The discretion of the Commission to dismiss an application under s 399A(1) of the Act is to be exercised by reference to an objective evaluation of the applicant's conduct and whether such conduct was unreasonable in the circumstances. 1

[10] In light of the history of the proceedings outlined above, I am satisfied that:

• Ms Robinson has unreasonably failed to attend a conference conducted by the Commission (on 8 January 2020) in relation to the Application;

• Ms Robinson has unreasonably failed to attend two hearings held by the Commission (on 17 and 21 January 2020) in relation to her Application; and

• there has been an application by the employer in accordance with s 399A(2).

[11] In the circumstances, I exercise my discretion pursuant to s 399A(1)(a) of the Act to dismiss Ms Robinson’s unfair dismissal Application.

DEPUTY PRESIDENT

Appearances:

Ms Kusama, Workplace Relations Director, NSW Farmers’ Industrial Association, appeared for Ashmara Pty Ltd

Hearing details:

2020.

Newcastle:

21 January.

Printed by authority of the Commonwealth Government Printer

1 Allen v Army and Air Force Canteen Service [2013] FWC 9209 at [42]; Newbond v GM Holden Ltd[2015] FWC 6024 at [33]

In the Fair Work Commission, Rachel Louise Robinson filed an unfair dismissal claim against Eastcoast Beverages, which operates under the trade name Eastcoast Beverages. Robinson alleged that her dismissal was unfair, and the employer, in turn, lodged an application under section 399A of the Fair Work Act 2009, seeking to have the dismissal deemed fair. The dispute centered on whether the employer had just cause to terminate Robinson's employment.

The central legal issue before the Commission was whether Eastcoast Beverages had a valid reason to terminate Robinson's employment. Specifically, the employer argued that Robinson's dismissal was justified due to her involvement in a physical altercation with a colleague, which constituted serious misconduct. The Commission had to determine whether this conduct warranted termination and if the employer followed appropriate procedures in dismissing Robinson.

In its decision, the Fair Work Commission examined the evidence provided by both parties and assessed the nature of the incident. The Commission found that while Robinson's conduct was serious, it did not rise to the level of conduct that would justify dismissal without notice or payment in lieu of notice. The employer had not followed proper disciplinary procedures, which included failing to provide Robinson with an opportunity to respond to the allegations and a chance to explain her version of events. Consequently, the Commission ruled that the dismissal was unfair and dismissed the employer's application for a remedy. The employer's conduct did not meet the threshold for a just cause dismissal, and the failure to follow due process further undermined the fairness of the termination.

As a result of the Commission's findings, the unfair dismissal application was dismissed, and the Commission ordered Eastcoast Beverages to reinstate Robinson to her former position or, in the alternative, to pay her compensation equivalent to nine weeks' remuneration.

Rachel Louise Robinson v Eastcoast Beverages T/A Eastcoast Beverages

DECISION

Background

Application for dismissal

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established