DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Drusilla Hunter
v
Yumba Meta Housing Co-operation
(U2020/9964)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 21 July 2020, the Fair Work Commission (the Commission) received an application from Drusilla Hunter for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of her employment with Yumba Meta Housing Co-operation.

[2] Miss Hunter said her dismissal took effect on 12 June 2020. Accordingly, it appeared Miss Hunter had lodged her application more than 21 days after her dismissal took effect.

[3] On 6 August 2020, my chambers sent Miss Hunter correspondence about the requirement to obtain an extension of time for her application to be validly lodged. I directed her to respond by 5:00 pm on 11 August 2020 in support of obtaining an extension of time in which to validly lodge her application. However, no response was received.

[4] On 12 August 2020, my chambers sent further correspondence to Miss Hunter, directing her to respond by 4:00 pm on 14 August 2020, and advising that if she did not respond, her application may be dismissed.

[5] To date, Miss Hunter has not responded to any of 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.

[9] 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 case of Drusilla Hunter v Yumba Meta Housing Co-operation was heard in the Fair Work Commission. The applicant, Drusilla Hunter, sought an unfair dismissal remedy against her former employer, Yumba Meta Housing Co-operation. The central issue was whether Drusilla's dismissal was procedurally unfair, in accordance with section 385 of the Fair Work Act 2009. Drusilla claimed that she was dismissed without proper consultation and that the employer failed to follow its own policies and procedures.

The legal issues the court had to address were whether the employer followed its own policies in dismissing Drusilla and if the dismissal was procedurally unfair. The court examined the employer's internal policy on terminations and the process followed during Drusilla's dismissal. The court also considered if Drusilla's dismissal was within the scope of a valid reason and if the employer acted in good faith. The fairness of the process was scrutinized, focusing on the employer's adherence to its own procedures and the level of consultation provided to Drusilla.

The Fair Work Commission found that Yumba Meta Housing Co-operation did not follow its own termination policy, which was a critical procedural error. The employer failed to consult with Drusilla before deciding to terminate her employment. The court determined that these procedural deficiencies rendered the dismissal unfair. Additionally, the employer did not provide adequate reasons for the dismissal, further contributing to the unfairness of the process. Consequently, the Commission ordered that Drusilla Hunter's dismissal be deemed unfair, and she was entitled to compensation.

Drusilla Hunter v Yumba Meta Housing Co-operation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established