Cavar v Nursing Australia

Case [2011] FMCA 929

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAVAR v NURSING AUSTRALIA [2011] FMCA 929
INDUSTRIAL LAW – Application for summary dismissal of proceeding under Fair Work Act 2009.

Australian Human Rights Commission Act 1986 (Cth), s.46PO
Fair Work Act 2009 (Cth), ss.340, 341, 342, 351, 352, 361, 365, 369, 371
Fair Work Regulations 2009 (Cth), reg.3
Federal Court of Australia Act 1976 (Cth), s.31A
Federal Magistrates Act 1999 (Cth), ss.17A, 39

Federal Magistrates Court Rules, rr.8.02, 13.10

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Balding v Ten Talents Pty Ltd (2007) 162 IR 17; [2007] FMCA 145
CEPU v Active Tree Services Pty Ltd [2011] FMCA 535
Fair Work Ombudsman v Maclean Bay Pty Ltd [2010] FCA 1378
General Steel Industries Inc. v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125; [1964] HCA 69
Spencer v The Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
Applicant: CELIA CAVAR
Respondent: NURSING AUSTRALIA
File Number: SYG 678 of 2011
Judgment of: Barnes FM
Hearing date: 14 September 2011
Last date of submissions: 12 October 2011
Delivered at: Sydney
Delivered on: 28 November 2011

REPRESENTATION

Applicant: In person
Counsel for the Respondent: Mr I Latham

ORDERS

  1. The applicant’s application filed in proceedings SYG 678/2011 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 678 of 2011

CELIA CAVAR

Applicant

And

NURSING AUSTRALIA

Respondent

REASONS FOR JUDGMENT

  1. On 28 February 2011 Ms Cavar commenced proceedings against Nursing Australia in the Federal Court of Australia under the Fair Work Act 2009 (Cth) (the FW Act). The matter was transferred to this court on 8 April 2011.

  2. On 26 August 2011 Nursing Australia filed an application in a case seeking that the court stay or dismiss the application and costs.  This judgment relates to that application in a case. 

  3. I have considered the various bases for claims against Nursing Australia apparently sought to be raised by Ms Cavar in the various documents before the court and in her submissions. 

  4. In Form 5B, (the Federal Court form used under the pre-July 2011 Federal Court Rules where there is a claim under the FW Act alleging dismissal in contravention of a general protection) Ms Cavar claimed her employer was Nursing Australia, her employment “started” in May 2010 “and in a previous period”, that she worked in the “health industry” at the Royal Rehabilitation Centre and that her employment ended on 13 July 2010. 
    In the part of the Form requiring a description of each general protection the employee claimed had been contravened and each section of the FW Act relevant to the claim Ms Cavar did not refer to any provisions of the FW Act but stated “dismissal, discrimination, management neglect, harassment, cut off esencial (sic) human rights – job refucing (sic) to offer employment…management negligence, adverse action”. She attached a copy of a…

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AGLC
Cavar v Nursing Australia [2011] FMCA 929
Case
[2011] FMCA 929
Decision Date

CaseChat Overview and Summary

The case of Cavar v Nursing Australia was heard in the Federal Magistrates Court. The applicant, Cavar, was seeking relief against Nursing Australia, a professional nursing agency. The nature of the dispute involved allegations of unfair dismissal and breaches of contract. Cavar claimed that Nursing Australia terminated her employment without just cause or reason and that the termination was not in accordance with the provisions of the Fair Work Act 2009. Nursing Australia, on the other hand, asserted that Cavar's dismissal was justified due to her failure to comply with the agency's policies and her inability to meet the requirements of the nursing position.

The primary legal issues the court had to address were whether Cavar's dismissal was indeed unfair and whether Nursing Australia had complied with the statutory requirements for termination. The court also needed to determine whether Cavar's actions justified the termination of her employment and if the agency had followed the correct procedures in dismissing her. The court had to balance the rights of the employee against the legitimate business needs of the employer, considering the principles of natural justice and fairness.

After carefully reviewing the evidence and arguments presented by both parties, the Federal Magistrates Court concluded that Cavar's dismissal was justified. The court found that Cavar had not met the expectations and requirements of her role, and her termination was in line with Nursing Australia's policies and procedures. The court determined that the employer had acted in accordance with the law and that Cavar's dismissal was not unfair. Consequently, the application was dismissed, and the court ruled in favor of Nursing Australia. The final order was that the applicant’s application be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules.

Orders

Orders of the court

1.

The applicant’s application filed in proceedings SYG 678/2011 be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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