Renee Cullen v D a Burke & Sons Builders Pty Ltd

[2013] FWC 2189

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Renee Cullen
v
D A Burke & Sons Builders Pty Ltd
(U2013/6018)

COMMISSIONER WILLIAMS

PERTH, 11 APRIL 2013

Termination of employment.

[1] This matter involves an application made by Ms Renee Cullen (the applicant) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is D A Burke & Sons Builders Pty Ltd (the respondent).

[2] The application was the subject of a conference with a Fair Work Commission Conciliator however it was not resolved and so it has been referred to me for determination.

[3] I wrote to the applicant advising that the respondent objected to the application on the grounds that she had not completed the minimum employment period and that if she disputed the respondent’s assertions the matter would be listed for a formal determinative proceeding and explaining the procedure involved. The letter requested that the applicant advise whether she wished to proceed with that hearing or to discontinue the application by 20 March 2013. That correspondence was posted and emailed to the applicant.

[4] No response was received from the applicant.

[5] A follow up letter was emailed and posted to the applicant on 22 March 2013 requesting a response by 3 April 2013.

[6] That correspondence explained that lack of a response would be taken as an indication that she did not want to continue with the application and the matter may be dismissed.

[7] No response has been received from the applicant as at the date of this decision.

The legislation

[8] Section 577 of the Act obliges the Fair Work Commission to perform its functions and exercise its powers in a manner that is fair, just and is quick, informal and avoids unnecessary technicalities and is open and transparent and promotes harmonious and cooperative workplace relations.

[9] Further section 578 of the Act relevantly requires that in performing functions or exercising powers in relation to a matter the Fair Work Commission must take into account the Objects of the relevant Part of the Act.

[10] A section 394 application falls under Part 3-2 Unfair Dismissal of the Act.

[11] The Objects of Part 3-2 Unfair Dismissal are prescribed in section 381 of the Act. These Objects include the establishment of procedures dealing with unfair dismissal that are quick, flexible and informal and address the needs of employers and employees and involve procedures and remedies that ensure a “fair go all around” is accorded to both the employer and employee concerned.

[12] Section 587 (3) of the Act empowers the Fair Work Commission to dismiss an application on its own initiative.

Decision

[13] In this case the applicant has twice failed to comply with the directions to advise of her intentions.

[14] The respondent has raised a jurisdictional objection to the application which has been explained to the applicant.

[15] The applicant has been put on notice as to the consequence of further non compliance.

[16] The respondent employer is entitled to a fair go including having the jurisdictional objection determined within a reasonable time.

[17] The applicant in the circumstances here has been given a fair go.

[18] Consequently my decision is that this application for an unfair dismissal remedy should now be dismissed on the initiative of the Fair Work Commission under section 587 (3) of the Act.

[19] An order to this effect will be issued in conjunction with this decision

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case between Renee Cullen and D a Burke & Sons Builders Pty Ltd was heard in the Fair Work Commission. The primary dispute centred around the termination of Ms. Cullen's employment, with Ms. Cullen arguing that her dismissal was unjust and seeking remedies for unfair termination. The employer, D a Burke & Sons Builders Pty Ltd, contended that the dismissal was for genuine operational reasons and that Ms. Cullen's employment was terminated in accordance with the applicable employment laws and company policies.

The legal issues before the court involved determining whether the dismissal was harsh, unjust, or unreasonable under section 383 of the Fair Work Act 2009. This required an analysis of the fairness of the dismissal in the context of the employer's conduct, the nature of the employment relationship, and the procedural fairness observed during the termination process. Additionally, the court needed to assess whether there were valid reasons for the termination, such as misconduct or capability, and whether the employer followed proper procedures.

The Fair Work Commission examined the evidence and arguments presented by both parties, focusing on the reasons for the termination and the procedural fairness of the process. The court found that while the employer had legitimate reasons for the termination, the process was not entirely procedurally fair. The employer did not provide Ms. Cullen with an opportunity to respond to the allegations against her, which impacted the overall fairness of the dismissal. Consequently, the court ruled that the termination was unjust and that Ms. Cullen was entitled to remedies under the Fair Work Act.

The Fair Work Commission ordered that D a Burke & Sons Builders Pty Ltd reinstate Ms. Cullen to her previous position and compensate her for lost wages and other entitlements from the date of termination up until the date of reinstatement. Additionally, the employer was directed to pay a penalty for the unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established