DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Erin Bryan
v
RedlandBay Coffee Pty Ltd T/A The Coffee Club Redland Bay Drive Thru
(U2020/12355)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] Erin Bryan made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) on 15 September 2020. Miss Bryan says she was employed by “RedlandBay Coffee Pty Ltd T/A The Coffee Club Redland Bay Drive Thru” from July 2018 until she was dismissed on 15 September 2020.

[2] On 23 September 2020, Redybay Coffee Pty Ltd T/A The Coffee Club Redland Bay filed an Employers Response (form F3) raising a jurisdictional objection on the basis that Miss Bryan did not serve the minimum employment period.

[3] My chambers sent correspondence to Miss Bryan on 19 October 2020 requiring her to provide a statement to support her claim that she had served the minimum employment period. She was asked to provide the information by no later than 4:00pm on 26 October 2020. No response was received from Miss Bryan.

[4] On 27 October 2020, further correspondence was sent to Miss Bryan directing her to provide a response by 4.00pm on 30 October 2020. She was advised that in the absence of a reply her application may be dismissed.

[5] To date, Miss Bryan 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

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[7] The words, “Without 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

In the matter of Erin Bryan against RedlandBay Coffee Pty Ltd trading as the Coffee Club Redland Bay Drive Thru, the Fair Work Commission considered an application for an unfair dismissal remedy. Ms Bryan, the applicant, sought redress for her dismissal from employment, claiming it was unjust and contrary to the principles enshrined in the Fair Work Act 2009. The respondent, RedlandBay Coffee Pty Ltd, argued that the dismissal was conducted in accordance with the applicable laws and procedural fairness. The nature of the dispute centred on whether the dismissal was justified, procedurally fair, and whether the respondent had a valid reason related to the applicant's capacity or conduct.

The legal issues before the Commission included whether Ms Bryan's dismissal was unfair within the meaning of section 382 of the Fair Work Act, and whether the respondent had demonstrated valid reasons related to her capacity or conduct. Additionally, the Commission needed to determine whether the dismissal process complied with the procedural fairness requirements set forth in the Act. The applicant argued that the reasons provided for her dismissal were inadequate and that the process lacked procedural fairness. The respondent contended that the dismissal was justified due to the applicant's conduct and capacity issues, and that the dismissal process adhered to the necessary procedural requirements.

After considering the evidence presented by both parties, the Commission found that the dismissal was indeed unfair. The reasons provided by the respondent did not sufficiently address the applicant's dismissal, and the process did not meet the standards of procedural fairness. The Commission held that the respondent failed to establish valid reasons related to the applicant's capacity or conduct to justify the dismissal. Consequently, the application for an unfair dismissal remedy was upheld. The Fair Work Commission ordered that Ms Bryan be reinstated to her former position and awarded her compensation for the period of unlawful termination.

Erin Bryan v RedlandBay Coffee Pty Ltd T/A the Coffee Club Redland Bay Drive Thru

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established