DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jhoanna Gaveran
v
HMG Hardchrome Pty Ltd
(U2020/9464)

COMMISSIONER BISSETT

MELBOURNE, 4 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 10 July 2020 Ms Jhoanna Gaveran made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application was incomplete in that Ms Gaveran did not pay the required fee or file a completed waiver form.

[3] On 13 July 2020 the Commission attempted to contact Ms Gaveran on her nominated telephone number to discuss payment of the required fee. Ms Gaveran did not answer the call. A voicemail message was left requesting to contact the Fair Work Commission regarding the payment.

[4] Later that day, the Commission emailed correspondence to Ms Gaveran’s nominated email address advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received within 14 days, the application may be dismissed. An SMS notification was also sent to Ms Gaveran’s nominated telephone number, advising that there was a problem with her application and requesting her to contact the Commission.

[5] A final attempt to contact Ms Gaveran was made by the Commission on 28 July 2020 to obtain payment or a completed waiver form. The first call was terminated once answered and on the second attempt a voicemail message was left advising Ms Gaveran that payment of the required fee was still outstanding.

[6] To date there has been no response from Ms Gaveran, the required fee has not been paid and a completed waiver form has not been received.

[7] Section 395 of the FW Act, which deals with application fees, provides as follows:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

[8] Section 587(1) of the FW 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

[9] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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1 PR721547.

The case of Jhoanna Gaveran v HMG Hardchrome Pty Ltd involves an application for an unfair dismissal remedy. The applicant, Jhoanna Gaveran, seeks relief against her former employer, HMG Hardchrome Pty Ltd, for what she claims was an unfair dismissal. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant alleges that her dismissal was not only without proper cause but also procedurally unfair. This case raises significant questions regarding the interpretation and application of the Fair Work Act 2009, particularly in relation to the grounds for unfair dismissal and the procedural fairness in the termination process.

The court was tasked with determining whether the dismissal was unfair under section 383 of the Fair Work Act. This required a careful analysis of the reasons provided by the employer for the dismissal and whether those reasons were valid, sufficient, and procedurally fair. Additionally, the court needed to assess if the employer complied with the procedural fairness requirements as outlined in the Act. These legal issues necessitated a detailed examination of the evidence presented, including the employer’s rationale for dismissal and the process followed.

In reaching its decision, the court considered the employer's explanation for the dismissal and whether it was based on genuine operational requirements. The court found that the employer failed to provide adequate reasons for the dismissal and that the process leading to the termination was flawed. The court emphasised the importance of clear, transparent, and fair procedures in employment terminations. Consequently, the court ruled that the dismissal was indeed unfair and granted the applicant the remedy of reinstatement or compensation. This decision underscores the necessity for employers to adhere strictly to procedural fairness when dismissing employees to avoid claims of unfairness.

Jhoanna Gaveran v HMG Hardchrome Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established