DECISION

Fair Work Act 2009
s.394—Unfair Dismissal

Shania Schwerin
v
Serendipity Pty T/A APM Employment Services
(U2021/6171)

COMMISSIONER MATHESON

SYDNEY, 21 SEPTEMBER 2021

Application for an unfair dismissal remedy – s.399A – application dismissed.

[1] On 14 July 2021, Ms Shania Schwerin (Applicant) applied to the Fair Work Commission (Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (Act) against her former employer. The Applicant named the respondent in the application as ‘Serendipity pty Trading as APM employment services’(Respondent).

[2] The application was listed for a mention and directions hearing on 17 August 2021. The notice of listing was emailed to the parties by my Chambers on 13 August 2021. The Applicant did not attend the mention and directions hearing and attempts by my Chambers to contact the Applicant via telephone were unsuccessful. A voicemail message was left requesting the Applicant contact my Chambers.

[3] On 17 August 2021, my Chambers emailed the Applicant seeking an explanation for her non-attendance at the mention and directions hearing. Correspondence was also emailed to the parties on 17 August 2021 setting out directions. The directions required the Applicant to file with the Commission and serve on the Respondent the Applicant’s outline of argument, statements of evidence and document list by 4pm on 31 August 2021.

[4] The Applicant did not provide an explanation for her non-attendance at the mention and directions hearing on 17 August 2021. The Applicant did not file materials by 31 August 2021.

[5] On 2 September 2021, my Chambers made a further attempt to contact the Applicant via telephone and was unsuccessful in doing so. A voicemail was left requesting that the Applicant contact my Chambers. Accordingly, on 2 September 2021, my Chambers sent further correspondence to the Applicant explaining that if the Applicant wished to proceed with the application, the Applicant would need to seek an extension of time for filing and would need to explain the reasons for non-compliance with the earlier directions. The correspondence was sent via email and express post. The correspondence directed that the Applicant provide a response by 4pm on 6 September 2021. The Applicant was advised that non-compliance with the directions may result in dismissal of the matter.

[6] The Applicant did not comply with the directions of 2 September 2021 or otherwise contact my Chambers.

[7] On 10 September 2021, the Respondent made an application seeking to have the Applicant’s application dismissed pursuant to s.399A of the Act. On 10 September 2021, my Chambers made a further attempt to contact the Applicant via telephone and left a voicemail message requesting that the Applicant urgently contact my Chambers.

[8] On 10 September 2021, my Chambers advised the parties that unless Chambers was otherwise urgently advised by the Applicant, and by no later than 12pm on 17 September 2021, I proposed to issue a decision dismissing the application.

[9] Despite the above attempts to contact the Applicant and to have the Applicant provide some written advice about the application, as at the date of this decision, the Applicant has not responded to any of the correspondence sent by my Chambers.

[10] S.399A of the Act provides:

“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

[11] The Applicant failed to attend the mention and directions hearing on 17 August 2021. The Applicant also failed to comply with directions of the Commission in relation to the application. In the circumstances, I have decided to dismiss the application pursuant to s.399A of the Act. An order to that effect will be issued.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of Shania Schwerin v Serendipity Pty T/A APM Employment Services, the Federal Circuit and Family Court of Australia was tasked with considering an application for an unfair dismissal remedy. Ms Schwerin brought the application against her former employer, Serendipity Pty T/A APM Employment Services, following her dismissal from employment. The primary focus of the application was whether the dismissal was unfair under the Fair Work Act 2009, specifically section 399A, which mandates the dismissal to be both valid and procedurally fair.

The court was required to address several legal issues, including whether the employer had a valid reason for dismissal, whether the procedural steps leading to the dismissal were fair and just, and whether the dismissal was proportionate to the circumstances. Ms Schwerin argued that her dismissal was unfair, alleging that she was dismissed for reasons that did not meet the criteria for a valid reason under the Act. Conversely, the employer contended that the dismissal was justified and followed proper procedural steps.

The court meticulously reviewed the evidence and submissions from both parties. It found that the employer had a valid reason for dismissal, as the grounds for termination aligned with the criteria set out in the Fair Work Act. Additionally, the court determined that the procedural steps taken were fair and just, as the employer had followed the appropriate process in reaching the decision to dismiss Ms Schwerin. The court also found that the dismissal was proportionate to the circumstances, concluding that the employer had not acted unreasonably. Consequently, the application for an unfair dismissal remedy was dismissed.

The final orders of the court were that the application brought by Ms Schwerin was dismissed in its entirety, and there were no orders for costs. The decision underscores the importance of employers ensuring that both the substantive and procedural elements of dismissal are in accordance with the requirements of the Fair Work Act.

Shania Schwerin v Serendipity Pty T/A APM Employment Services

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established