Chelsea Mathews v Lovisa Pty Ltd T/A Lovisa

[2022] FWC 3071

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Chelsea Mathews
v

Lovisa Pty Ltd T/A Lovisa

(U2022/10529)

COMMISSIONER BISSETT

MELBOURNE, 21 NOVEMBER 2022

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

On 31 October 2022, Ms Chelsea Mathews made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

The application form filed by Ms Mathews was incomplete in that she had not provided details of the respondent other than the legal name of her former employer. Ms Matthews had also not signed the application or provided a completed Form F80 (waiver of application fee) or paid for the lodgement fee.

On 3 November 2022, the Commission attempted to contact Ms Mathews on her nominated telephone number to request the missing details. Ms Mathews did not answer the call. A voicemail message was left asking her to provide an application with the missing information. The contact number for the Fair Work Commission was provided should she have any questions.

Later that day the Commission emailed correspondence to Ms Mathews’ nominated email address asking that she provide further details as the application was incomplete in that it was not signed and was missing respondent information. That correspondence also advised that if the required information was not provided within 14 days the application may be dismissed.

As the required information was not received, on 9 November 2022 and again on 15 November 2022 the Commission attempted to contact Ms Mathews on her nominated telephone number. Ms Matthews did not answer on either occasion. A voicemail message was left on each occasion asking that she contact the Commission as her matter was at risk of being dismissed.

To date, no response has been received and Ms Mathews has not provided the necessary details.

Section 587(1) of the FW Act provides as follows:

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

(c) the application has no reasonable prospect of success.

In these circumstances, I have determined that the application was not made in accordance with the FW Act.

As such, the application is dismissed under s.587(1)(a) of the FW Act. An order[1] to this effect will be issued with this decision.

COMMISSIONER

[1] PR748079

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Chelsea Mathews applied for relief from her dismissal by Lovisa Pty Ltd T/A Lovisa, a jewellery retailer. The Fair Work Commission (FWC) dismissed the application due to it being incomplete and also initiated relief from dismissal under section 587 of the Fair Work Act 2009. Mathews contended that her dismissal was harsh, unjust, or unreasonable and that she had not received the appropriate notice of termination. Lovisa argued that Mathews had been dismissed for poor performance, and that the dismissal was justified under the company's policies.

The central issue for the FWC was whether the application for relief from dismissal was sufficiently complete to warrant consideration. Additionally, the court had to determine if the dismissal was harsh, unjust, or unreasonable, and whether it complied with the procedural requirements set out in the Fair Work Act. The FWC needed to consider if Mathews' dismissal was justified on the grounds of poor performance and whether she had received adequate notice.

The FWC found that Mathews' application was incomplete as it did not adequately address the reasons for her dismissal and the performance issues. Despite this, the FWC initiated relief from dismissal under section 587, considering the application's merits. Mathews argued that her dismissal was unjust due to the lack of formal warnings and the absence of a performance improvement plan. Lovisa maintained that Mathews' dismissal was justified due to her consistent poor performance. The FWC concluded that the dismissal was not harsh, unjust, or unreasonable given Mathews' performance history and the company's efforts to address the issues.

The FWC decided that Mathews' dismissal was justified and did not warrant relief. The FWC also noted that the application was incomplete and did not meet the necessary standards for consideration. Therefore, the application for relief from dismissal was dismissed, and no orders were made in favour of Mathews.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established