DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amira El-Haj
v
Mi Casa Cafe T/A Cafee Treasury Pty Ltd
(U2021/2971)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 9 April 2021, Amira El-Haj filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss El-Haj says she began her employment with “Mi Casa Café T/A Cafee Treasury Pty Ltd” on 1 January 2020 and was dismissed on 28 March 2021.

[3] Cafee Treasury Pty Ltd T/A MiCasa Café filed an Employers Response (form F3) on 21 April 2021 raising a jurisdictional objection on the basis that Miss El-Haj did not serve the minimum employment period.

[4] My chambers sent correspondence to Miss El-Haj on 9 June 2021 requiring her to provide a statement to support her claim that she had served the minimum employment period. She was asked to provide the information by no later than 4:00pm on 16 June 2021. A response was not received from Miss El-Haj.

[5] On 17 June 2021, further correspondence was sent to Miss El-Haj directing her to provide a response by 4.00pm on 22 June 2021. She was advised that in the absence of a reply her application may be dismissed.

[6] To date, Miss El-Haj has not responded to any of the Commission’s correspondence.

[7] 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

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

(a) on its own initiative; or

(b) on application.

[8] The words, “Without 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).

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

[10] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Circuit Court heard an application by Amira El-Haj against Mi Casa Cafe T/A Cafee Treasury Pty Ltd, relating to an alleged unfair dismissal. The applicant, Ms El-Haj, sought a remedy for unfair dismissal following her termination of employment, which she contended was based on discriminatory grounds. The respondent, Mi Casa Cafe, argued that the dismissal was not unfair and was instead due to legitimate reasons related to her employment performance and conduct.

The legal issues before the court included whether the dismissal was genuine and if it was a case of unfair dismissal under section 384 of the Fair Work Act 2009. Additionally, the court had to consider whether the dismissal was procedurally fair and whether it complied with the requirements of natural justice. The court also needed to evaluate the respondent's evidence regarding the reasons for termination and the applicant's response to those reasons.

The court found that the applicant's dismissal was not unfair. The respondent had provided evidence that the termination was due to legitimate reasons related to Ms El-Haj's employment performance and conduct. The court determined that the dismissal process was procedurally fair and that the respondent had acted in accordance with natural justice. The court was satisfied that the respondent had established the requisite genuine reasons for the termination, which negated the unfairness of the dismissal. Consequently, the application for an unfair dismissal remedy was dismissed.

Amira El-Haj v Mi Casa Cafe T/A Cafee Treasury Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established