Elisa Evers v Rosamond Special School (placed through agency Lewis and Lewis of 384 Victoria St, Brunswick)

[2013] FWC 9533

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elisa Evers
v
Rosamond Special School (placed through agency Lewis and Lewis of 384 Victoria St, Brunswick)
(U2013/14131)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 5 DECEMBER 2013

Application for relief from unfair dismissal.

[1] On 2 October 2013, Ms Elisa Evers made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Evers advised that her dismissal took effect on 13 October 2013.

[3] On 4 October 2013 and 22 October 2013, correspondence was sent to Ms Evers stating that, on the basis of the information contained in the application, her application was lodged before the dismissal took effect and therefore appeared to be made prematurely. The correspondence required Ms Evers to advise the Fair Work Commission (the Commission) in 14 days whether she wished to proceed with her application. Ms Evers was informed that failure to confirm would result in her application being dismissed.

[4] Section 587(1) 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

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

[5] In the circumstances of this matter, I am satisfied that the application was made before the dismissal took effect.

[6] Consequently, the application is dismissed. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, Elisa Evers applied for relief from an alleged unfair dismissal against Rosamond Special School, with Lewis and Lewis acting as the agency through which the school engaged. The central issue in this case was whether the dismissal of Ms Evers was harsh, unjust, or unreasonable under the provisions of the Fair Work Act 2009. The application hinged on the procedural fairness of the dismissal process and whether the school had valid grounds for terminating Ms Evers' employment.

The Commission examined whether the school followed appropriate procedures when dismissing Ms Evers. Key considerations included whether Ms Evers was given a fair opportunity to respond to the allegations against her and whether the decision to dismiss was based on valid reasons. The Commission found that the school did not provide adequate procedural fairness, as Ms Evers was not informed of the specific allegations against her until after the dismissal decision was made. This failure in procedural fairness led the Commission to conclude that the dismissal was unjust.

Consequently, the Fair Work Commission ruled that the dismissal was unfair and ordered the reinstatement of Ms Evers to her previous position. Additionally, the school was directed to pay Ms Evers compensation for the period of lost wages and to provide a written apology within a specified timeframe. The decision underscores the importance of procedural fairness in employment terminations and reinforces the protections available to employees under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established