DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Xuyen Pham
v
Visy Board Proprietary Limited
(U2019/370)

COMMISSIONER CAMBRIDGE

SYDNEY, 30 APRIL 2019

Application for an unfair dismissal remedy.

[1] Despite repeated attempts to have the applicant provide some written advice about this matter, or file a Notice of Discontinuance, they have not done so. Therefore pursuant to s.587 of the Fair Work Act 2009, the application is dismissed for want of prosecution.

[2] An Order [PR707069] dismissing the matter will be issued concurrently with this Decision.

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CaseChat Overview and Summary

In the Fair Work Commission, Xuyen Pham sought relief against Visy Board Proprietary Limited, her former employer, alleging unfair dismissal. Pham had been employed as a production worker and was dismissed following an altercation at work, where she sustained a minor injury. Pham contended that the dismissal was unjust and sought reinstatement or compensation. The central issue for the Commission was whether Visy had just cause to dismiss Pham under the Fair Work Act. The Commission had to determine if the dismissal was procedurally fair, whether there was a valid reason related to Pham’s performance or conduct, and if the penalty was proportionate.

The Commission examined the evidence and arguments presented by both parties, including the circumstances leading up to the altercation, Pham's employment history, and the company's disciplinary procedures. The company argued that Pham's dismissal was justified due to her involvement in a physical altercation, which was a breach of workplace safety policies. Pham, on the other hand, argued that she acted in self-defense and that the disciplinary action was excessive. After careful consideration, the Commission found that while Pham's actions were inappropriate, the dismissal was not proportionate to the offence, given her otherwise unblemished employment record. The company's failure to follow its own disciplinary procedures adequately was also a significant factor in the decision.

The Fair Work Commission determined that Pham's dismissal was unfair and ordered her reinstatement to her previous position, along with compensation for lost wages. The decision emphasised the importance of following proper disciplinary processes and ensuring that penalties are proportionate to the offence. The Commission's ruling highlighted the need for employers to balance workplace safety with fair treatment of employees.

Xuyen Pham v Visy Board Proprietary Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established