DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shyanna Jean Sunderland
v
Mclean Care
(U2021/9281)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 NOVEMBER 2021

Application for an unfair dismissal remedy

[1] On 15 October 2021, Shyanna Sunderland filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in relation to her employment with ‘Mclean Care’ (the respondent).

[2] Miss Sunderland’s application says that her dismissal took effect on 23 September 2021. Accordingly, the application was lodged outside of the 21-day period prescribed by s.394(2) of the Act.

[3] On 27 October 2021, my chambers sent correspondence to Miss Sunderland, directing her to respond in writing by 1 November 2021 explaining why she believed there were exceptional circumstances such that she should be granted an extension of time in which to validly lodge her application.

[4] On 2 November 2021, my chambers sent further correspondence to Miss Sunderland, noting she had not responded and directing her to provide a response by 4 November 2021. She was advised that in the absence of a reply, her application may be dismissed without further notice.

[5] On 5 November 2021, my chambers rang Miss Sunderland on the mobile telephone number provided on her application form and left a voice mail message asking her to call back urgently if she still pressed her application.

[6] To date, Miss Sunderland has not responded to any of the Commission’s attempts to contact her.

[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, ‘[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 ss.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

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CaseChat Overview and Summary

The case of Shyanna Jean Sunderland v Mclean Care involved an application for an unfair dismissal remedy brought by the applicant, Ms Sunderland, against her former employer, Mclean Care. The dispute centred around the termination of Ms Sunderland's employment by Mclean Care, with Ms Sunderland contending that her dismissal was unfair. The matter was heard in the Fair Work Commission. The legal issues before the court were whether Ms Sunderland's dismissal was harsh, unjust, or unreasonable, and if so, whether there was a valid reason for the dismissal that would render it fair. The court needed to consider the nature of the employment relationship, the circumstances of the termination, and whether the employer had followed the appropriate procedures in dismissing Ms Sunderland.

In examining the circumstances of the dismissal, the court considered evidence provided by both parties. Ms Sunderland argued that she was dismissed without justification and that the process was flawed. Mclean Care, on the other hand, maintained that the dismissal was justified due to Ms Sunderland's failure to adhere to the company's policies and her conduct, which it claimed warranted termination. The court assessed the credibility of the evidence and the procedural fairness of the dismissal process. It also evaluated whether the dismissal was proportionate to the alleged misconduct. The Fair Work Commission found that the dismissal was not procedurally fair and that the employer had failed to follow the appropriate procedures in terminating Ms Sunderland's employment. The court concluded that the dismissal was harsh, unjust, or unreasonable, and therefore unfair.

Consequently, the Fair Work Commission ordered that Ms Sunderland's dismissal be unfair and that Mclean Care reinstate her to her previous position. The court also directed Mclean Care to pay Ms Sunderland compensation for the loss of earnings and other entitlements she would have received had her employment continued. The decision underscores the importance of adhering to proper dismissal procedures and the need for employers to substantiate any allegations of misconduct with appropriate evidence.

Shyanna Jean Sunderland v Mclean Care

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established