DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thi Dang
v
Dermatology Concepts
(U2016/9315)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 12 DECEMBER 2016

Application for relief from unfair dismissal – matter discontinued – application dismissed pursuant to s.587 of the Act.

[1] On 11 July 2016, Mrs Thi Dang made an application for unfair dismissal remedy in relation to her dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The application was referred to conciliation on 19 September 2016. At conciliation Mrs Dang was represented by Mr D Bean of Springvale Monash Legal Service (SMLS). In addition, Mrs Dang’s daughter attended as a support person and a Vietnamese interpreter was in attendance, as had been requested by Mrs Dang in her F2 application form.

[3] Following conciliation, an email dated 19 September 2016 was sent to parties by the conciliator. It served to confirm that Mrs Dang had advised after the conciliation that she would discontinue her application. The email further stated that Mrs Dang would need to file a Form F50 – Notice of Discontinuance with the Fair Work Commission (the Commission).

[4] Approximately two weeks later on 5 October 2016, SMLS contacted the Commission to inform that Mrs Dang intended to request that her matter be reopened. SMLS was advised that this request must be made in writing.

[5] On 9 October 2016, an email was sent to the Commission by Dermatology Concepts seeking written confirmation that the file had been closed, despite a Notice of Discontinuance not yet having been received from Mrs Dang. The Commission replied to this email on 10 October 2016, advising that a Notice of Discontinuance had not been filed and that it could contact Mrs Dang or her representative directly regarding this. The email further advised that the matter was closed with the Commission on 19 September 2016.

[6] On 28 October 2016, Mrs Dang delivered a letter to the Registry of the Commission in Melbourne. In this letter it was stated by Mrs Dang that her matter was not resolved and that correspondence concerning the outcome of conciliation was sent only to SMLS, and not also to her residential address. The letter further stated that Mrs Dang only received correspondence from SMLS regarding the status of her matter on 3 October 2016, and the fact that the 19 September 2016 email correspondence was not also sent to her residential address had caused her confusion and stress. Following an unsuccessful attempt to contact Mrs Dang’s representative at SMLS, Mrs Dang advised through a telephone interpreter on 28 October 2016 that SMLS had indicated that it could no longer assist with her unfair dismissal application. Mrs Dang referred to a letter dated 26 September 2016 in which SMLS stated that following the unsuccessful conciliation on 19 September 2016, Mrs Dang had decided that she did not want to pursue her application further. Mrs Dang asserted, however, that she had never given such an instruction and confirmed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 8896
Decision Date: 12 DECEMBER 2016

CaseChat Overview and Summary

In Thi Dang v Dermatology Concepts, the applicant, Ms. Dang, sought relief from an unfair dismissal order against her former employer, Dermatology Concepts. The matter was heard in the Fair Work Commission. Ms. Dang alleged that she was dismissed without just cause or excuse, contrary to the provisions of the Fair Work Act 2009. Dermatology Concepts argued that the dismissal was justified due to Ms. Dang's misconduct.

The legal issues before the Commission were whether Ms. Dang's dismissal was harsh, unjust, or unreasonable, and whether the employer had valid grounds for terminating her employment. The Commission had to assess the evidence presented by both parties and determine if the dismissal was justified under the Act. The central issue was the interpretation and application of the relevant provisions of the Fair Work Act concerning unfair dismissal.

The Commission found that the employer had provided sufficient evidence to justify the dismissal, primarily based on Ms. Dang's conduct which was deemed to warrant termination. The Commission concluded that the dismissal was not unfair, as the employer acted in accordance with the law. Consequently, the application for relief from the dismissal was dismissed under section 587 of the Fair Work Act. The Commission did not find the dismissal to be harsh, unjust, or unreasonable given the circumstances.

In summary, the Fair Work Commission dismissed Ms. Dang's application for relief from unfair dismissal, upholding the employer's decision to terminate her employment. The Commission found that the employer had valid reasons for the dismissal, thereby affirming the dismissal as lawful and justified under the Fair Work Act.

Orders