DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jodie McLennan
v
Northvic Parcels Pty Ltd
(U2019/7186)

COMMISSIONER BISSETT

MELBOURNE, 30 AUGUST 2019

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 1 July 2019 Ms Jodie McLennan (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the FW Act).

[2] On 19 July 2019 the Respondent filed its Form F3 – Employer response to unfair dismissal application containing a jurisdictional objection on the basis that the Respondent is a small business employer and the employer complied with the Small Business Fair Dismissal Code. It said that the Applicant was “[a] casual employee who worked on an irregular basis with no set hours.”. The Respondent further stated that the Applicant has not worked for the company since 26 March 2019.

[3] The matter proceeded to conciliation on 1 August 2019 but did not resolve.

[4] A Notice of Listing was sent to the parties on 12 August 2019 scheduling the matter for a Jurisdiction (Minimum Employment Period – Non regular and systematic casual employee) Conference/Hearing on 20 and 23 September 2019. Directions were also issued, requiring the Respondent to file material in support of its jurisdictional objection by 22 August 2019 and the Applicant to file material responding to the Respondent’s jurisdictional by 2 September 2019.

[5] The Respondent filed its material on 20 August 2019 in compliance with the Directions. The Applicant is due to file her material next Monday.

[6] On 14 August 2019 the Respondent filed a Form F1 Application seeking to have the Applicant’s matter dismissed on the basis that the application has been made frivolously and “the case has no basis, fact or law of unlawful dismissal, and is without unreasonable cause”.

[7] The Respondent says that the Applicant had no guaranteed hours of work, worked irregular and non-systematic hours, did not get paid sick or annual leave and that the Respondent can terminate the Applicant’s employment without notice as it has not entered into a registered agreement, award or employment contract.

[8] At this point in time I consider the Respondent’s application to dismiss has been made prematurely as the Applicant has not had an opportunity to respond to the jurisdictional objection made by the Respondent. Accordingly, the Respondent’s application is dismissed.

[9] The matter will proceed to Jurisdiction (Minimum Employment Period – Non regular and systematic casual employee) Conference/Hearing on 20 and 23 September 2019.

COMMISSIONER

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CaseChat Overview and Summary

Jodie McLennan brought an application against Northvic Parcels Pty Ltd for an unfair dismissal remedy. The applicant was dismissed from her employment under section 587 of the Fair Work Act 2009, an action initiated by the Fair Work Commission. The central issue was whether the dismissal was harsh, unjust, or unreasonable, given the circumstances of the case. The applicant claimed that the dismissal was unfair due to the employer's failure to follow proper procedures and provide adequate support during a period of disciplinary action. The employer, on the other hand, argued that the dismissal was justified based on the applicant's conduct and the terms of the employment contract.

The Fair Work Commission carefully considered the evidence and arguments presented by both parties. It examined the procedural fairness of the dismissal process, including whether the employer had followed its own policies and provided the applicant with an opportunity to respond to the allegations against her. The Commission also evaluated the reasonableness of the employer's actions in light of the applicant's employment history and the specific circumstances surrounding the dismissal. Ultimately, the Commission found that the dismissal was unfair because the employer did not adhere to its own disciplinary procedures and failed to provide the applicant with a reasonable opportunity to address the issues before the final decision was made.

Consequently, the Commission ordered that the dismissal of Jodie McLennan be unfair and required Northvic Parcels Pty Ltd to reinstate her to her previous position. Additionally, the employer was directed to pay compensation for the loss of earnings and to take steps to rectify any adverse effects on the applicant's employment record. This decision underscores the importance of following established procedures and ensuring that employees are given a fair chance to respond to disciplinary actions.

Jodie McLennan v Northvic Parcels 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