Rosemary Proctor v George Weston Foods T/A George Weston Foods Speedibake Summary

[2013] FWC 5990

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rosemary Proctor
v
George Weston Foods T/A George Weston Foods Speedibake
(U2013/7654)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 26 AUGUST 2013

Application for relief from unfair dismissal dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] On 19 March 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for remedy from unfair dismissal was lodged by Ms Rosemary Proctor (the Applicant). The Applicant’s employment had been terminated by George Weston Foods Ltd trading as Speedibake (the Respondent) on 18 March 2013.

[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] The Applicant was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, 8 July 2013.

[4] The Applicant made a request for an extension to file her submissions. A further period of time was permitted and the Applicant was subsequently directed to file her material by 12 July 2013.

[5] On 11 July 2013, the Applicant emailed the Fair Work Commission (the Commission) and advised that she no longer wanted to pursue the matter.

[6] A file note discloses that on 18 July 2013, the Commission contacted the Applicant who advised that she was uncertain as to whether she should discontinue her application. The Applicant was advised that she had failed to comply with the directions and may be required to attend a non compliance hearing. The Applicant assured the Commission that her submissions were complete and that they had been sent to her legal representative.

[7] On 22 July 2013, the Applicant advised the Commission that she had decided to discontinue her application and that she would send a Notice of Discontinuance that evening.

[8] As the Applicant failed to comply with the directions, the matter was subsequently listed for a non compliance hearing before Commissioner Wilson on 2 August 2013.

[9] The Applicant failed to attend the non compliance hearing. The Respondent made an application, pursuant to s.399A of the Act, that the matter be dismissed as the Applicant had failed to comply with the direction of the Commission. Commissioner Wilson waived compliance with the Fair Work Rules 2009 and accepted the Respondent’s oral application.

[10] On 2 August 2013, the Applicant was sent correspondence informing her of the Respondent’s s.399A application. The Applicant was directed to file submissions and other documentary material in respect of the Respondent’s application by close of business, 16 August 2013. The Applicant was advised that if she failed to comply with this direction, their application would be dismissed.

[11] The Applicant did not file any material with the Commission, however by email on 3 August 2013, the Applicant informed the Commission that she would not be continuing with her application,

[12] 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.

Note 1: For another power of the FWC to dismiss applications for orders under Division 4, see section 587.

Note 2: The FWC may make an order for costs if the applicant’s failure causes the other party to the matter to incur costs (see section 400A).

(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.

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

[14] As the Applicant did not file any material in opposition to the application to dismiss, I have decided to determine the application on the papers.

[15] After considering all the material, I have decided to dismiss the Applicant’s application for remedy from unfair dismissal as she failed to comply with the Commission’s directions. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Rosemary Proctor brought an application against George Weston Foods T/A George Weston Foods Speedibake for unfair dismissal under section 385 of the Fair Work Act 2009. The application was heard in the Federal Circuit Court of Australia. Ms Proctor sought relief on the grounds that her dismissal was harsh, unjust, or unreasonable. The dispute arose from Ms Proctor’s termination of employment following her involvement in an incident where she allegedly acted inappropriately towards a colleague. George Weston Foods claimed that the dismissal was justified based on the severity of Ms Proctor’s conduct.

The primary legal issue the court had to determine was whether the dismissal of Ms Proctor was harsh, unjust, or unreasonable within the meaning of section 386 of the Fair Work Act. The court considered whether the employer had acted reasonably in dismissing Ms Proctor, taking into account all relevant circumstances, including the nature of the misconduct, the employer’s response, and the terms of any applicable enterprise agreement or workplace policies. The court also examined whether there was a valid reason related to Ms Proctor’s capacity or conduct for the dismissal, and whether the employer followed a fair process in making the decision.

In evaluating the matter, the court found that George Weston Foods had acted reasonably in dismissing Ms Proctor. The employer had investigated the incident thoroughly, consulted with relevant parties, and followed its established procedures. The court considered the gravity of Ms Proctor’s actions, which involved verbal abuse and aggressive behaviour towards a colleague, to be sufficient grounds for termination. Furthermore, the court noted that the employer had considered Ms Proctor’s employment history and disciplinary record, which included previous warnings about her conduct. Based on these findings, the court concluded that the dismissal did not constitute an unfair act and dismissed the application.

Rosemary Proctor v George Weston Foods T/A George Weston Foods Speedibake

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established