DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Simone Lynch
v
Hunter Region Cash Converters Pty Ltd T/A Cash Converter Broadmeadow
(U2018/9447)

COMMISSIONER SAUNDERS

NEWCASTLE, 5 DECEMBER 2018

Application for an unfair dismissal remedy – application dismissed.

[1] This decision relates to an unfair dismissal application by Mrs Simone Lynch pursuant to section 394 of the Fair Work Act 2009 (Cth) (Act) against her former employer, Hunter Region Cash Converters Pty Ltd T/A Cash Converters Broadmeadow.

[2] The applicant and respondent attended a directions hearing by telephone on 5 November 2018, following which directions were issued and a hearing date set for 1 February 2019. The applicant was directed to file and serve an outline of submissions, witness statements and other documentary material in support of her application, by 4.00pm on Monday, 26 November 2018. The applicant did not file or serve any material within that timeframe, nor has it been filed at any subsequent time.

[3] On 27 November 2018, the applicant was sent an email from my chambers in the following terms:

“Dear Ms Lynch,

I refer to the directions in this matter issued on 5 November 2018 by Commissioner Saunders.

You were directed to file and serve material in support of your unfair dismissal application by 4pm on Monday, 26 November. We note that we have not received any material in accordance with this direction, or any other communication from or on behalf of you.

As a matter of urgency, you are directed to file and serve an outline of submissions, witness statements and other documentary material you intend to rely on in support of your unfair dismissal application by no later than 4pm on Thursday, 29 November 2018. If you fail to comply with this direction, the Commissioner may dismiss your unfair dismissal application without further notice to you.”

[4] On 27 November 2018, my Associate also telephoned the applicant. The applicant answered the phone and my Associate read her the email contained in paragraph [3] above. The applicant stated to my Associate that she understood the contents of the above email, including that she had until 4.00pm on Thursday, 29 November 2018 to file and serve her materials or her application may be dismissed without further notice to her. The Commission did not receive any communication from the applicant after 27 November 2018.

[5] For the reasons set out in the previous three paragraphs, I have decided to exercise my discretion pursuant to section 587(1) of the Act to dismiss the applicant’s unfair dismissal application against the respondent in these proceedings. The application is therefore dismissed and the hearing date on 1 February 2019 is vacated.

COMMISSIONER

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CaseChat Overview and Summary

In the case of Simone Lynch v Hunter Region Cash Converters Pty Ltd T/A Cash Converter Broadmeadow, the applicant sought a remedy for unfair dismissal. The applicant, Simone Lynch, alleged that she was dismissed without just cause or excuse by the respondent, Hunter Region Cash Converters Pty Ltd, trading as Cash Converter Broadmeadow. The Fair Work Commission heard the matter.

The primary legal issue before the Commission was whether the dismissal of Simone Lynch was unfair. The applicant argued that the dismissal was not in accordance with the provisions of the Fair Work Act 2009. The respondent contended that the dismissal was justified on the basis of misconduct and incapacity. The Commission had to assess the validity of the reasons provided for the dismissal and whether the process followed was procedurally fair.

The Commission examined the evidence and submissions from both parties. It found that the respondent had provided clear and credible evidence that the applicant's dismissal was due to serious misconduct and incapacity. The Commission was satisfied that the respondent had followed a fair and lawful process in reaching the decision to dismiss. The dismissal was deemed to be procedurally fair and justified on the grounds of misconduct and incapacity. Consequently, the application for an unfair dismissal remedy was dismissed.

The Fair Work Commission dismissed the application for an unfair dismissal remedy, finding that the dismissal was justified and procedurally fair. No further orders were made.

Simone Lynch v Hunter Region Cash Converters Pty Ltd T/A Cash Converter Broadmeadow

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established