DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shenay Bali
v
Proud Real Estate
(U2021/4306)

VICE PRESIDENT CATANZARITI

SYDNEY, 4 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 19 May 2021, Shenay Bali (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against her former employer, “Proud Real Estate”.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 23 June 2021. The applicant did not attend the conciliation.

[3] My chambers sent correspondence to the applicant on 12 July 2021, directing her to advise us by 4:00pm on 19 July 2021 whether she still pressed her application. However, we did not receive a response from the applicant by that time.

[4] On 20 July 2021, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00pm on 23 July 2021. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, the applicant has not responded to any of the Commission’s correspondence.

[6] 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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the 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) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] 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).

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Shenay Bali versus Proud Real Estate was brought before the Fair Work Commission. Shenay Bali, the applicant, sought a remedy for an unfair dismissal. The respondent, Proud Real Estate, argued that the dismissal was lawful. The dispute centred around the termination of Ms. Bali's employment and the subsequent claim that the dismissal was unjust and unfair.

The primary legal issue the Commission had to resolve was whether Ms. Bali's dismissal was indeed unfair. This involved examining whether the termination was a proportionate response to the alleged misconduct or if it constituted an unjustifiable exercise of power by the employer. Additionally, the Commission considered whether the dismissal complied with the procedural fairness principles outlined in the Fair Work Act.

The Fair Work Commission determined that the dismissal was not unfair. The evidence presented indicated that Ms. Bali's conduct warranted disciplinary action, and the employer had followed the appropriate procedures before deciding to terminate her employment. The Commission found that Proud Real Estate had acted reasonably and within their rights under the employment contract and relevant legislation.

The Commission dismissed the application for unfair dismissal remedy. It held that the employer had provided sufficient grounds for termination and had adhered to the necessary procedural steps. The decision underscored the importance of employers conducting thorough investigations and following due process when dealing with employee misconduct.

Shenay Bali v Proud Real Estate

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established