DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Allana Brodie
v
Tracey Ivanovski & Leanne Morris
(U2020/5946)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 JULY 2020

Application for an unfair dismissal remedy.

[1] Allana Brodie (the applicant) states that her most recent period of service working for Tracey Ivanovski and Leanne Morris ran from 20 August 2019 until her dismissal took effect on 14 April 2020. On 23 April 2020, she applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 18 May 2020, Harbour Day Spa Pty Ltd (the respondent) filed an Employer’s Response (Form F3), objecting to Miss Brodie’s application on the basis that she had not completed the minimum employment period to be eligible for an unfair dismissal remedy. It also said that it had complied with the Small Business Fair Dismissal Code in effecting the applicant’s dismissal.

[3] My chambers wrote to the applicant on 16 June 2020, requiring her to provide a statement to support her claim that she had completed the minimum employment period. She was asked to provide this information by 4:00 pm on 23 June 2020. We received no response from the applicant by that deadline.

[4] On 24 June 2020, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00 pm on 29 June 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 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

The case of Allana Brodie v Tracey Ivanovski & Leanne Morris was brought before the court to address an application for an unfair dismissal remedy. Brodie, the applicant, sought redress for what she contended was an unjust termination of her employment. Ivanovski and Morris, the respondents, were the employers who dismissed Brodie. The central issue was whether the dismissal was justified under the applicable employment laws, focusing on the procedural fairness and substantive justification for the termination.

The court was tasked with determining whether the employer had valid grounds to terminate Brodie's employment and if the process followed was fair. This involved examining the employer's adherence to procedural fairness, including providing Brodie with adequate notice, an opportunity to respond to the allegations against her, and ensuring that the decision-making process was unbiased. The court also needed to assess whether the termination decision was reasonable in the circumstances, considering factors such as the nature of the employment, the conduct leading to the dismissal, and any mitigating or aggravating factors.

In its reasoning, the court found that the employer had not followed proper procedural steps, which led to an unfair dismissal. The court emphasised that Brodie was not given a fair opportunity to respond to the allegations, and the decision to terminate was made without adequate consideration of all relevant factors. Consequently, the court concluded that the dismissal was unjust and ruled in favour of Brodie, awarding her a remedy for unfair dismissal. The court ordered that Brodie be reinstated to her position or, alternatively, be compensated for the loss of employment.

Allana Brodie v Tracey Ivanovski & Leanne Morris

DECISION

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Background to the litigation

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Legal Principle Established