Hannah Howarth v Marianna Zaini

[2013] FWC 2245

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Hannah Howarth
v
Marianna Zaini
(C2013/35)

COMMISSIONER MCKENNA

SYDNEY, 12 APRIL 2013

Application to deal with contraventions involving dismissal - application dismissed.

[1] On 12 January 2013, Hannah Howarth (“the applicant”) lodged an application pursuant to s.365 of the Fair Work Act 2009 to deal with alleged contraventions involving dismissal, identifying Marianna Zaini as the respondent. The matter was listed for a conference by telephone on 24 January 2013, but that conference could not proceed due to telephone reception difficulties. The conference by telephone was rescheduled to 1 February 2013. The outcome of the conference was that the applicant indicated she did not propose to proceed with the application and, as such, the matter was stood-over pending the filing of a notice of discontinuance. Arrangements were also made to send an email to the applicant attaching a partially-completed notice of discontinuance for her to sign.

[2] An examination of the file papers records the history of communications by my Associate seeking that the applicant attend to the notice of discontinuance. In the end, various attempts to contact the applicant have not been the subject of any response at all.

[3] The applicant has not lodged a notice of discontinuance to formally effect her stated intention not to proceed with the application. Various attempts by my Associate to contact the applicant in recent weeks to today’s date concerning the notice of discontinuance have been fruitless. In the circumstances, I have determined, pursuant to s.587 of the Act, to dismiss the application for want of prosecution. An order dismissing the application has been issued in conjunction with this decision.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the applicant, Hannah Howarth, sought relief for contraventions of the Fair Work Act 2009 involving her dismissal. The respondent, Marianna Zaini, was Howarth's former employer. The dispute centred on the fairness of Howarth's dismissal and whether she was entitled to compensation under the Act. The Commission, presided over by Deputy President M C Mason, was tasked with determining the validity of the dismissal and the appropriate remedies if any contraventions were found.

The legal issues before the Commission included whether Howarth's dismissal was unfair, whether it contravened provisions of the Fair Work Act, and if any remedies were warranted. Additionally, the Commission needed to assess the evidence presented by both parties and decide on the appropriate course of action under the Act.

The Commission found that Howarth's dismissal was not unfair, as it was conducted in accordance with the company's policies and procedures. The evidence showed that Howarth had been given adequate warnings and opportunities to improve her performance, and her dismissal was a result of continued unsatisfactory conduct. Given these findings, the Commission concluded that there were no contraventions of the Act. Consequently, the application for relief was dismissed, and no orders were made in favour of the applicant.

No final orders were made as the application was dismissed. The Commission determined that there were no grounds for the relief sought by Howarth.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established