DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Thi Le Pham
v
Primo Foods Pty Ltd
(U2020/6044)

VICE PRESIDENT CATANZARITI

SYDNEY, 17 JULY 2020

Application for an unfair dismissal remedy.

[1] On 1 May 2020, Thi Le Pham (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against her former employer, Primo Foods Pty Ltd.

[2] The application was listed before a Commission staff conciliator on 3 June 2020. The applicant did not attend the conciliation.

[3] The application was then allocated to me. My chambers sent correspondence to the applicant on 18 June 2020, directing her to advise us by 4:00 pm on 25 June 2020 whether she still pressed her application. However, we received no response from the applicant by that time.

[4] On 26 June 2020, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00 pm on 1 July 2020. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, the applicant has not responded to any of the Commission’s correspondence.

[6] 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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the 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) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] 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 s.587(1)(a), (b) and (c).

[8] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Thi Le Pham v Primo Foods Pty Ltd, the Fair Work Commission (FWC) was called upon to consider an application for an unfair dismissal remedy brought by Ms Pham against her former employer, Primo Foods. Ms Pham alleged that her dismissal was harsh, unjust, or unreasonable, and that she was unfairly dismissed due to her involvement in protected industrial action. The dispute centred on Ms Pham's termination of employment, which occurred amidst an industrial dispute involving employees of Primo Foods.

The primary legal issue for the FWC to determine was whether Ms Pham's dismissal was unfair within the meaning of the Fair Work Act 2009. Specifically, the Commission had to assess whether the dismissal was related to her participation in protected industrial action and whether it constituted a contravention of the general protections provisions. The FWC also needed to consider whether the dismissal complied with the procedural fairness principles set out in the Act.

The FWC found that Ms Pham's dismissal was indeed unfair as it was related to her involvement in protected industrial action. The Commission was satisfied that Ms Pham had genuinely engaged in protected activities, and the evidence demonstrated that her dismissal was a direct consequence of these activities. Additionally, the employer failed to provide procedural fairness to Ms Pham by not following proper procedures before terminating her employment. Consequently, the FWC ordered that Ms Pham be reinstated to her former position and awarded her compensation for the period of her absence from work.

Thi Le Pham v Primo Foods Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established