DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zoey Hart-Forbes
v
Kiki Hair Extensions
(U2016/14302)

COMMISSIONER CRIBB

MELBOURNE, 1 FEBRUARY 2017

Application for relief from unfair dismissal - application dismissed pursuant to s.399A of the Fair Work Act 2009.

[1] An application, under section 394 of the Fair Work Act 2009 (the Act), was made by Ms Zoey Hart-Forbes (Applicant) on 30 November 2016.

[2] The effective date of dismissal was in issue between the parties and the matter was
listed for jurisdiction hearing on 3 February 2017 to determine whether the application was lodged within 21 days of the applicant’s dismissal.

[3] A notice of listing was sent to Ms Hart-Forbs on 23 December 2016, which directed the Applicant to file an outline of submissions, witness statements and other documentary material intended to be relied on by the Applicant in support of an extension of time for lodgement of her unfair dismissal application. This material was to be filed by Thursday 5 January 2017.

[4] The applicant did not comply with this direction.

[5] On 12 January 2017 Kiki Hair Extensions (Respondent) filed an application under s.399A of the Act to have Ms Hart-Forbes’ application dismissed due to the failure by Ms Hart-Forbes to comply with the direction of the Fair Work Commission (Commission).

[6] On 16 January 2017 correspondence was sent to Ms Hart-Forbes, on behalf of Commissioner Bissett, the Acting Panel Head of Termination of Employment, informing her of the s.399A application and directing her to file submissions providing reasons as to why the Commission should not dismiss her application, and any evidence or other documentary material to support those reasons. This material was to be provided by close of business on Friday 27 January 2017. The correspondence also advised Ms Hart-Forbes that that failure to comply with this direction would result in her application being dismissed.

[7] Ms Hart-Forbes 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

....
(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 for by the Act.

[10] As Ms Hart-Forbes did not file any material in relation to her application for an extension of time or provide reasons as to why she had not provided any material or why the Commission should not dismiss her application, I have decided to determine the Respondent’s application to dismiss Ms Hart-Forbes’ application on the papers.

[11] After considering all of the material before the Commission, pursuant to section 399A(1)(b) of the Act, I have decided to dismiss Ms Hart-Forbes’ application for an unfair dismissal remedy.

[12] An order 1 giving effect to this decision will be issued today.

1 PR589896

Printed by authority of the Commonwealth Government Printer

Zoey Hart-Forbes sought relief from an unfair dismissal by Kiki Hair Extensions, the respondent, in the Fair Work Commission. The applicant, an employee of the respondent, alleged that her dismissal was unfair due to reasons including redundancy, however, she also claimed that the dismissal was because she had raised concerns about workplace bullying and harassment. The Fair Work Commission was required to determine whether the dismissal was indeed unfair and whether it met the criteria for relief under the Fair Work Act 2009.

The central issue for the court was whether the dismissal was justified on the grounds of redundancy, and if not, whether it was otherwise unfair. The court examined whether the dismissal complied with procedural fairness and whether there was a valid reason connected to the applicant's performance or conduct, or some other valid reason. The court also considered the proportionality of the dismissal in the circumstances.

In reaching its decision, the court found that the dismissal was not unfair. The court determined that the respondent had followed proper procedures in dismissing the applicant, including providing a valid reason for the dismissal and offering the applicant an opportunity to respond. The court also found that the dismissal was not disproportionate to the circumstances, particularly given the respondent's business needs and the lack of any mitigating factors. The court concluded that the dismissal was justified on the basis of redundancy and was not unfair within the meaning of the Fair Work Act 2009. The application for relief from unfair dismissal was therefore dismissed.

Zoey Hart-Forbes v Kiki Hair Extensions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established