Shayla Wybrow v H.Q Nguyen & I.R Tauman & J.H Yong T/A Direct Chemist Outlet Werribee Village

[2023] FWC 1095

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Shayla Wybrow
v

H.Q Nguyen & I.R Tauman & J.H Yong T/A Direct Chemist Outlet Werribee Village

(U2023/1629)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 9 MAY 2023

Application for an unfair dismissal remedy

Ms Shayla Wybrow (the Applicant) indicates that she was employed by H.Q Nguyen & I.R Tauman & J.H Yong T/A Direct Chemist Outlet Werribee Village (the Respondent) from 22 February 2021 until she was dismissed on 7 February 2023.

On 28 February 2023, the Applicant made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

A conciliation was listed on 30 March 2023. The conciliation did not proceed due to the unavailability of the Applicant.

The Applicant’s representative, Employee Dismissals, filed a form F54 on 19 April 2023 and advised the Commission that the Applicant “has remained to be uncontactable”.

A Mention was listed before me on 20 April 2023. The Applicant failed to attend the Mention without reasonable excuse, despite my chambers attempting to contact the Applicant twice by telephone and also forwarding an email requesting that she join the Microsoft Teams link.

On 20 April 2023, my chambers sent amended Directions to the parties, directing the Applicant to file submissions, witness statements, evidence in support of her application and to advise whether she intends to proceed with her application, by 28 April 2023. However, we received no response from the Applicant by that time.

On 1 May 2023, my chambers forwarded a letter to the Applicant, advising that her application was at risk of being dismissed pursuant to s.587 of the Act, unless she filed submissions by 4:00pm 5 May 2023, providing reasons as to why the Commission should not dismiss her application. The Applicant was also telephoned twice this day. We received no response from the Applicant.

The Applicant has failed to attend and comply with the Directions provided by the Commission and to date, the Applicant has not responded to any correspondence sent by my chambers.

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

(c) the application has no reasonable prospects of success.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

The words, “[w]ithout 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).

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

An order to that effect will issue with this Decision.

DEPUTY PRESIDENT

The matter before the Fair Work Commission involved Shayla Wybrow, the applicant, seeking a remedy for unfair dismissal against H.Q Nguyen, I.R Tauman, and J.H Yong, trading as Direct Chemist Outlet Werribee Village, the respondents. The central dispute centred on the termination of the applicant's employment, which she contended was unjust and warranted a remedy. The case was heard by Deputy President S.J. Smith of the Fair Work Commission.

The primary legal issues addressed by the Commission were whether the dismissal was unfair under section 382 of the Fair Work Act 2009 and whether the employer had just cause to terminate the employment. The applicant argued that her dismissal was unjust and lacked procedural fairness, while the employer contended that the dismissal was justified due to serious misconduct. The Commission needed to determine if the employer's decision to terminate the employment was reasonable and whether the process followed was fair.

The Commission, after considering the evidence and submissions from both parties, found that the dismissal was indeed unfair. The employer failed to follow a fair process, and the grounds for termination were not sufficiently substantiated. The Commission emphasised that the employer did not provide adequate reasons for the dismissal and did not allow the applicant an opportunity to respond to the allegations against her. Consequently, the dismissal was deemed to lack procedural fairness and was unfair. The Commission ordered the employer to reinstate the applicant to her former position or, alternatively, to pay her compensation equivalent to twelve weeks' remuneration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established