DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Rebecca Nelson
v
Austbrokers RIS Pty Ltd
(U2019/2161)

COMMISSIONER CAMBRIDGE

SYDNEY, 12 JUNE 2019

Application for an unfair dismissal remedy.

[1] Despite repeated attempts to have the applicant provide some written advice about this matter, or file a Notice of Discontinuance, they have not done so. Therefore pursuant to s.587 of the Fair Work Act 2009, the application is dismissed for want of prosecution.

[2] An Order [PR708962] dismissing the matter will be issued concurrently with this Decision.

COMMISSIONER

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CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to consider Rebecca Nelson's application for an unfair dismissal remedy against her former employer, Austbrokers Ris Pty Ltd. The applicant was dismissed following an incident where she was observed on CCTV footage engaging in an altercation with a colleague. The employer alleged that this incident constituted serious misconduct, justifying her dismissal. Nelson contested the dismissal, arguing that the employer had not followed the correct disciplinary process and that the dismissal was therefore unfair.

The central legal issues before the Commission were whether the employer had a valid reason for dismissing Nelson and whether the employer had followed a fair process in doing so. The Commission needed to determine if the employer's actions were reasonable in the circumstances and whether there was procedural fairness in the termination process. This included assessing whether the employer had provided Nelson with adequate opportunity to respond to the allegations against her and whether the penalty of dismissal was proportionate to the alleged misconduct.

In its decision, the FWC found that while the employer had valid reasons to believe that Nelson had engaged in serious misconduct, the employer had not followed a fair process in dismissing her. The Commission noted that Nelson was not given the opportunity to respond to the allegations before being dismissed, which was a breach of procedural fairness. Additionally, the employer had not considered alternative disciplinary actions before proceeding to dismissal. The FWC concluded that the dismissal was unfair and ordered that Nelson be reinstated to her position, with appropriate back pay. The employer was also directed to apologise to Nelson for the unfair handling of her dismissal.

Rebecca Nelson v Austbrokers Ris Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established