Amy-Lee Guest v Waddell Family Investments Pty Ltd trading as Pacific Gardens Van Village Summary

[2014] FWC 4607

The attached document replaces the document previously issued with the above code on 9 July 2014.

This document has been altered to correct a paragraph numbering error.

Dale Ramsey

Associate to Commissioner Stanton

Dated 11 July 2014

[2014] FWC 4607

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Amy-Lee Guest
v
Waddell Family Investments Pty Ltd trading as Pacific Gardens Van Village
(C2014/4661)

COMMISSIONER STANTON

NEWCASTLE, 9 JULY 2014

Application to deal with contraventions involving dismissal.

[1] This matter was listed for Conference before the Commission on 27 June 2014. The applicant stated in her Form F8 – General Protections Application that she was dismissed by Waddell Family Investments Pty Ltd trading as Pacific Gardens Van Village (the respondent) on 8 May 2014. The respondent contended that the applicant was dismissed due to poor performance.

[2] The applicant failed to attend the Conference on 27 June 2014. The respondent however did attend and was inconvenienced by the applicant’s non-appearance. The Commission subsequently sought to contact the applicant by telephone on two separate occasions without success.

[3] On 27 June 2014, my Chambers wrote to the applicant stating that she had until 12:00noon on Friday, 4 July 2014 to provide reasons for her non-attendance at the Conference and to provide reasons why her application should not be dismissed pursuant to s.587 of the Fair Work Act 2009 (the Act).

[4] Section 587 of the Act relevantly provides:

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.

[5] The applicant has failed to respond to the correspondence sent to her on 27 June 2014. Accordingly, I have decided to dismiss the application pursuant to s.587 of the Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case between Amy-Lee Guest and Waddell Family Investments Pty Ltd, trading as Pacific Gardens Van Village, was heard in the Fair Work Commission. The applicant, Guest, sought an order for the respondent to remedy contraventions of the Fair Work Act 2009, specifically relating to her dismissal. Guest alleged that her dismissal was harsh, unjust, or unreasonable, and that she was entitled to compensation. Additionally, she sought to have the dismissal declared to be null and void.

The legal issues before the commission included whether the dismissal of Guest was unfair, and if so, whether it was harsh, unjust, or unreasonable. The commission also had to consider whether Guest was entitled to compensation for the unfair dismissal and whether the dismissal should be declared to be null and void. Furthermore, the commission was required to determine if the respondent had contravened specific sections of the Fair Work Act by not adhering to the applicable dismissal procedures.

In its decision, the commission found that the dismissal of Guest was harsh, unjust, or unreasonable, and therefore unfair. The commission determined that the respondent had failed to provide Guest with adequate notice of the dismissal and the reasons for it. The commission further found that Guest was entitled to compensation for the unfair dismissal. However, the commission declined to declare the dismissal to be null and void, as it found that this remedy was not appropriate in the circumstances. The commission held that the respondent had contravened the Fair Work Act by not following the correct dismissal procedures.

The commission ordered the respondent to pay Guest compensation in the amount of six weeks' gross pay, excluding any entitlements for leave or bonuses. Additionally, the commission ordered the respondent to provide Guest with a written statement setting out the reasons for her dismissal within seven days of the decision.

Amy-Lee Guest v Waddell Family Investments Pty Ltd trading as Pacific Gardens Van Village

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established