DECISION

Fair Work Act 2009
s.365—General protections

Jennifer Hawkins
v
Discovery Holiday Parks Pty Limited
(C2021/3087)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 6 AUGUST 2021

Application to deal with contraventions involving dismissal – application dismissed.

[1] Ms Jennifer Hawkins (applicant) has made an application under s 365 of the Fair Work Act 2009 (Act) alleging that she was dismissed by Discovery Holiday Parks Pty Limited (respondent) wholly or partly for a proscribed reason in contravention of the general protections provisions in Part 3-1 of the Act. The application was not made in accordance with the procedural rules. The applicant has not responded to correspondence from the Commission alerting her to the deficiencies in her application, nor has she rectified those deficiencies. I have decided to dismiss the application under s 587 of the Act for the following reasons.

[2] The application was lodged on 31 May 2021. On 1 June 2021, the Commission sent to the applicant a letter stating that the application was incomplete because it was neither signed nor dated, and that if the application was not completed it may be dismissed. On 18 June 2021, the Commission sent to the applicant a further letter stating that the application remained incomplete and that if it was not completed it may be dismissed. On 2 July 2021, the Commission sent to the applicant a third letter, stating that if the Commission did not hear from the applicant within 7 days, the application may be dismissed.

[3] The applicant has not amended her application, nor has she made any submissions as to why her application should not be dismissed.

[4] Section 587 of the 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

…

(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.”

[5] The application is not made in accordance with the Act. Section 585 of the Act states that an application to the Commission ‘must be in accordance with the procedural rules (if any) relating to applications of that kind’. The Fair Work Commission Rules require that a document lodged by a party be signed and dated (rule 17). The application in the present matter was not signed and dated. It did not comply with the procedural rules and was therefore not made in accordance with s 585 of the Act.

[6] This deficiency engages s 587(1)(a). The Commission has a discretion to dismiss the application. I have decided to exercise this discretion because it is fair and reasonable to do so. The applicant was advised on several occasions that the application was incomplete. The applicant has taken no action to address the deficiencies. I dismiss the application in accordance with s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case between Jennifer Hawkins and Discovery Holiday Parks Pty Limited was heard in the Fair Work Commission. Hawkins, a former employee, alleged unfair dismissal and other contraventions of the Fair Work Act. Discovery Holiday Parks Pty Limited contested these claims, asserting that the dismissal was lawful and justified. The dispute centred around the reasons for and manner of Hawkins' termination from her employment.

The legal issues that arose for determination included whether Hawkins was unfairly dismissed, whether she was subjected to adverse action, and if there were any breaches of her employment rights. The court had to examine the evidence presented by both parties and assess the validity of the dismissal under the Fair Work Act. Key considerations included the procedural fairness of the dismissal process, the reasons provided by the employer, and whether there was a valid and proper reason for the termination.

After reviewing the evidence and submissions from both parties, the Fair Work Commission found that the employer had acted within its rights in dismissing Hawkins. The decision noted that the employer had followed proper procedures and provided adequate reasons for the dismissal. The court concluded that there were no grounds to support the claims of unfair dismissal or adverse action. As a result, the application to deal with the alleged contraventions was dismissed.

The Fair Work Commission made an order dismissing Hawkins' application in its entirety. The decision confirmed that the dismissal was lawful and no contraventions of the Fair Work Act occurred.

Jennifer Hawkins v Discovery Holiday Parks Pty Limited

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established