DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tahlia Poulton
v
Concentrix Services Pty Ltd T/A Concentrix
(U2016/7253)

COMMISSIONER WILSON

MELBOURNE, 2 AUGUST 2016

Application for relief from unfair dismissal.

[1] On 27 May 2016, Ms Tahlia Poulton made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act). Ms Poulton’s employment had been terminated by Concentrix Services Pty Ltd T/A Concentrix on 20 May 2016.

[2] The matter was listed for conciliation on 23 June 2016 however it could not take place. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Poulton was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon, on 18 July 2016.

[4] Ms Poulton did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Roe on 22 July 2016.

[5] Ms Poulton did not attend the non compliance hearing. Concentrix made an oral application, pursuant to s.399A of the Act, that the matter be dismissed as Ms Poulton had failed to comply with the direction of the Fair Work Commission. Commissioner Roe waived compliance with the Fair Work Commission Rules 2013 and accepted Concentrix’ oral application.

[6] On 22 July 2016, Ms Poulton was sent correspondence informing her of Concentrix’ section 399A application. Ms Poulton was directed to file submissions and other documentary material in respect of Concentrix’ application by close of business, on 29 July 2016. Ms Poulton was advised that if she failed to comply with this direction, her application would be dismissed.

[7] Ms Poulton did not file any material with the Commission.

[8] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....
(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[9] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[10] As Ms Poulton did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[11] As Ms Poulton has provided no explanation for her failure to comply with directions, I find that her failure was unreasonable.

[12] The power to dismiss an application if the non-compliance was unreasonable is discretionary. Ms Poulton has failed to respond to the many attempts by the Commission to contact her. She has shown no willingness to prosecute her case. In those circumstances, I will exercise my discretion and dismiss Ms Poulton’s application. An order giving effect to this decision will be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Tahlia Poulton, sought relief from an unfair dismissal against Concentrix Services Pty Ltd, trading as Concentrix. The dismissal was related to allegations of bullying and harassment in the workplace. The matter was heard in the Fair Work Commission. The central issue before the Commission was whether the dismissal was harsh, unjust, or unreasonable, and whether there were grounds to grant relief under the Fair Work Act 2009. Specifically, the Commission needed to determine if the dismissal was justified under the provisions of section 383 of the Act, which allows for dismissal without penalty if it was due to misconduct, capability, or unsatisfactory performance.

The Commission considered the evidence and submissions from both parties, focusing on the conduct of the employer and whether it met the threshold for an unfair dismissal. The applicant argued that the employer failed to adequately address her complaints of bullying and harassment, leading to an unsafe working environment. Concentrix, on the other hand, contended that the dismissal was justified based on her conduct and performance issues. The Commission assessed the reasonableness of the employer's actions, the adequacy of the investigation into the allegations, and the proportionality of the disciplinary action taken. Ultimately, the Commission found that the dismissal was unjust as it did not follow the appropriate procedures and was not supported by sufficient evidence.

Based on its findings, the Commission ordered that the dismissal be unfair and that the applicant be reinstated to her position. The decision emphasised the importance of employers providing a safe and respectful workplace and adhering to proper disciplinary procedures. The Commission also highlighted the need for employers to address complaints of bullying and harassment promptly and effectively. This case serves as a reminder of the obligations placed on employers to maintain a safe working environment and the consequences of failing to do so.

Tahlia Poulton v Concentrix Services Pty Ltd T/A Concentrix

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established