DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sally Tuiala
v
Bartels Lawyers
(U2019/3758)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 3 April 2019, Sally Tuiala made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). On 4 April 2019, Ms Tuiala filed an amended unfair dismissal application.

[2] Ms Tuiala advised in her amended application that she was employed by Bartels Lawyers from 6 June 2016 until she was dismissed on 13 March 2019.

[3] On 10 May 2019, Bartels Lawyers filed an Employers Response (form F3). Bartels Lawyers submitted that Ms Tuiala commenced her employment on 6 June 2016 and resigned from her position with the firm on 12 March 2019. Bartels Lawyers raised several jurisdictional objections to the application: Ms Tuiala was not dismissed, Bartels Lawyers is a small business employer and had complied with the Small Business Fair Dismissal Code and Bartels Lawyers is a registered sole trader and is therefore not a constitutional corporation for the purposes of the Act and is not a National System Employer.

[4] The matter was referred to me to determine the jurisdictional objection that Bartels Lawyers is not a constitutional corporation for the purposes of the Act. Correspondence was sent to Ms Tuiala on 4 June 2019 requiring her to provide a statement if she considered that she was employed by a National System Employer and the Fair Work Commission has jurisdiction to hear her application. She was asked to provide the information by no later than 11 June 2019. No response was received from Ms Tuiala.

[5] On 13 June 2019, further correspondence was sent to Ms Tuiala directing her to provide a response by 4.00pm on 20 June 2019. She was advised that in the absence of a reply her application would be dismissed.

[6] To date, Ms Tuiala has not responded to any of the Commission’s correspondence.

[7] Section 587 of the Act provides:

587 Dismissing applications

(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

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[8] The words, “Without limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act, establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[9] In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[10] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit and Family Court of Australia, the applicant Sally Tuiala sought an unfair dismissal remedy against Bartels Lawyers. The applicant alleged that her dismissal was unjust and contrary to the principles of fairness. She argued that her dismissal was not only procedurally unfair but also without a valid reason, as required under the Fair Work Act 2009. The court was tasked with determining whether the dismissal was indeed unfair and, if so, what remedy should be applied.

The primary legal issue before the court was whether the dismissal of the applicant was procedurally and substantively fair. The applicant claimed that her employer failed to provide a valid reason for her dismissal and did not afford her the opportunity to respond to the allegations against her. The respondent, Bartels Lawyers, contended that the dismissal was justified due to serious misconduct on the part of the applicant and that all procedural requirements were followed. The court needed to assess the evidence and arguments presented by both parties to determine the fairness of the dismissal.

After evaluating the evidence and arguments, the court found that the dismissal was procedurally unfair as the applicant was not provided with an adequate opportunity to respond to the allegations. Despite this finding, the court determined that the dismissal was substantively fair due to the serious nature of the misconduct. Consequently, the court concluded that while the dismissal was unfair in terms of the procedural fairness, it was justified on substantive grounds. The court ultimately decided not to grant the unfair dismissal remedy, as the procedural unfairness did not outweigh the substantive justification for the dismissal.

No further orders were made by the court beyond the decision on the unfair dismissal remedy.

Sally Tuiala v Bartels Lawyers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established