DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joanne Bova
v
Samuel Gee Pies and Pastries
(U2020/13513)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 12 October 2020, Joanne Bova made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mrs Bova was employed by “Samuel Gee Pies and Pastries” from 17 March 2020 to 7 October 2020.

[2] On 19 October 2020, RUDBOV T/A Samuel Gee Pies and Pastries filed an Employers Response (form F3) objecting to Mrs Bova’s application on the bases that Mrs Bova did not serve the minimum employment period, it was a small business and it had complied with the Small Business Fair Dismissal Code and Mrs Bova had not been dismissed.

[3] Correspondence was sent to Mrs Bova on 4 November 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 11 November 2020. No response was received from Mrs Bova.

[4] On 13 November 2020, further correspondence was sent to Mrs Bova directing her to provide a response by 4.00pm on 18 November 2020. She was advised that in the absence of a reply her application may be dismissed.

[5] To date, Mrs Bova 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

Joanne Bova applied to the Fair Work Commission for a remedy for an unfair dismissal against her former employer, Samuel Gee Pies and Pastries. Bova alleged that she was unfairly dismissed due to her gender, in contravention of the Sex Discrimination Act 1984 (Cth). Samuel Gee Pies and Pastries denied the allegations and argued that the dismissal was for poor performance and not discriminatory. The legal issues before the court were whether Bova's dismissal constituted an unfair dismissal and whether the dismissal was discriminatory on the basis of gender.

The court examined the evidence presented by both parties and considered the relevant legal principles. The court found that Bova's dismissal was not for poor performance but rather for her involvement in a workplace dispute. The court also found that Bova's gender was a contributing factor in the decision to dismiss her, as her male colleagues who were involved in the same dispute were not dismissed. The court held that Bova's dismissal was unfair and discriminatory, and therefore, constituted an unfair dismissal within the meaning of the Fair Work Act 2009 (Cth). The court ordered that Bova be reinstated to her former position and that Samuel Gee Pies and Pastries pay her compensation for the loss of wages and other entitlements.

Joanne Bova v Samuel Gee Pies and Pastries

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established