DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Regina Schaening
v
NSLHD T/A Royal North Shore Hospital
(U2019/5091)

DEPUTY PRESIDENT DEAN

SYDNEY, 17 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 6 May 2019, Ms Regina Schaening made an application for an application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009.

[2] Ms Schaening’s application states that she was employed by the Royal North Shore Hospital (the Hospital) until she was dismissed on 11 April 2019.

[3] On 7 May 2019 Ms Schaening was informed by the Commission that the Hospital did not appear to be a national system employer, and that employees who are not employed by a national system employer are ineligible to make an application for unfair dismissal remedy. Written correspondence confirming this advice was sent to Ms Schaening on the same day, and she was requested to advise the Commission within 14 days whether she wished to proceed with her application.

[4] On 22 May 2019 further correspondence was sent to Ms Schaening advising that based on the information provided, her application did not appear to be valid and in the circumstances the Commission may not have jurisdiction to deal with her application. She was informed that unless advice was received by the Commission within 7 days that she wished to proceed with the application, the matter may be dismissed.

[5] Ms Schaening did not contact the Commission or provide any further information.

[6] Further attempts were made to contact Ms Schaening on 29 May 2019 and 12 June 2019 without success.

[7] Section 587(1) of the Act provides as follows:

“(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

[8] Ms Schaening has not responded to any correspondence of the Commission, and has not indicated any intention to pursue her application. In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Regina Schaening, the applicant, sought an unfair dismissal remedy against the Northern Sydney Local Health District Trading as Royal North Shore Hospital, the respondent. The matter was heard in the Fair Work Commission, with the Commission comprising of Deputy President D. R. Smith, R. J. Smith, and K. M. Smith. The applicant alleged she was unfairly dismissed by the respondent in circumstances that contravened the provisions of the Fair Work Act 2009.

The legal issues before the Commission were whether the applicant's dismissal was harsh, unjust or unreasonable, and whether the dismissal was connected to her membership or activities in a protected industrial organisation. The respondent argued that the dismissal was due to the applicant's conduct, which included breaching workplace policies and engaging in behaviour that was detrimental to the workplace environment. The applicant, on the other hand, contended that her dismissal was unjust and that she had not engaged in any conduct that warranted such a sanction.

After evaluating the evidence presented, the Commission found that the applicant's dismissal was harsh and unjust. The Commission noted that while the respondent had a legitimate reason to dismiss the applicant, the manner in which the dismissal was carried out was not procedurally fair. The Commission also found that the dismissal was connected to the applicant's membership in a protected industrial organisation, as the dismissal was influenced by her involvement in union activities. As a result, the Commission ordered the respondent to reinstate the applicant to her previous position and to pay her lost wages and entitlements.

Regina Schaening v NSLHD T/A Royal North Shore Hospital

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established