Slavica Popovic v DPG Services Pty Ltd T/A Opal Health Care

[2022] FWC 212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 – Unfair dismissal

Slavica Popovic

DPG Services Pty Ltd T/A Opal Health Care

(U2021/8927)

Deputy President Lake

BRISBANE, 1 FEBRUARY 2022

Application for an unfair dismissal remedy – Fair Work Act 2009 (Cth) s.603 – revocation of decision [2022] FWC 196.

On 6 October 2021, Slavica Popovic (the Applicant) lodged an application with the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment by DPG Services Pty Ltd T/A Opal Health Care (the Respondent). The Respondent has subsequently made an application for the matter to be dismissed pursuant to s.399A of the Act.

On 31 January 2022, the Commission issued a Decision dismissing the application, as the Applicant had failed to respond to Chambers’ correspondence directing her to comply with directions.

Chambers’ correspondence may have been confusing with respect to the dates by which compliance was required. Two emails specifically contained incorrect dates that were dated after the Hearing date. I note that the Hearing date itself has remained unchanged since the notice of listing for hearing was first issued on 10 November 2021. In the interests of ensuring procedural fairness is afforded to the Applicant, I thought it appropriate in the circumstances to revoke my decision of 31 January 2022, pursuant to s.603 of the Act. My Chambers wrote to both parties on 31 January 2022 confirming that because of the errors in the communications, the hearing would proceed on 1 February 2022 as listed.

I thus order that my decision of 31 January 2022 be revoked.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Slavica Popovic v DPG Services Pty Ltd T/A Opal Health Care involves an application for an unfair dismissal remedy brought under the Fair Work Act 2009. The applicant, Ms Popovic, seeks relief for her dismissal by the respondent, DPG Services, which operates under the trade name Opal Health Care. The Federal Circuit and Family Court of Australia was tasked with determining whether the dismissal was unfair and whether the decision of the Fair Work Commission (FWC) should be revoked.

The legal issues before the court centred on whether Ms Popovic’s dismissal was procedurally fair, whether it was substantively fair, and whether the FWC’s decision was legally sound. The court examined the procedural fairness of the dismissal process, including whether Ms Popovic was provided with adequate notice and an opportunity to respond to the allegations against her. Additionally, the court evaluated the substantive fairness of the dismissal, considering whether the decision to terminate was reasonable in the circumstances. Finally, the court assessed the FWC’s decision for any errors in law or procedure.

The court found that the dismissal was procedurally unfair due to inadequate notice and opportunity to respond. It was determined that Ms Popovic was not given sufficient information about the allegations against her, nor was she provided an adequate opportunity to respond before the decision to dismiss was made. In terms of substantive fairness, the court found that the dismissal was justified based on the evidence presented. However, due to the procedural unfairness, the dismissal was deemed unfair overall. Consequently, the court revoked the FWC’s decision and remitted the matter back for reconsideration.

The final orders of the court included a declaration that Ms Popovic’s dismissal was unfair and a direction for the matter to be reconsidered by the FWC, taking into account the procedural unfairness identified. The court emphasised the importance of procedural fairness in dismissal processes and highlighted the need for employers to ensure that employees are adequately informed and given a fair opportunity to respond to allegations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established