DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jodie Sage
v
Tommy Bahama Ltd
(U2019/1057)

DEPUTY PRESIDENT DEAN

SYDNEY, 8 APRIL 2019

Application for an unfair dismissal remedy.

[1] On 3 February 2019, Ms Jodie Sage made an application under s.394 of the Fair Work Act 2009 for a remedy in respect of her alleged unfair dismissal by Tommy Bahama Ltd (Tommy Bahama).

[2] The application was initially listed for telephone conciliation before a Fair Work Commission conciliator on 4 March 2019. Tommy Bahama sought and was granted an adjournment of the conciliation and it was relisted for 8 March 2019. The conciliation could not take place as Ms Sage was unable to be contacted at that time.

[3] On 18 March 2019 correspondence was sent to Ms Sage requesting that she contact my chambers by 25 March 2019 to advise whether or not she wished to proceed with her application. No response from Ms Sage was received.

[4] On 1 April 2019, further correspondence was sent to Miss Sage directing her to provide a response by 4:00pm on 4 April 2019. She was advised that in the absence of a reply her application may be dismissed.

[5] Final attempts were made to contact Ms Sage by telephone on 5 April 2019.

[6] To date, Ms Sage has not responded to any of the Commission’s correspondence.

[7] 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.

[8] 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).

[9] In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[10] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter of Jodie Sage against Tommy Bahama Ltd was heard by the Fair Work Commission, where the applicant sought an unfair dismissal remedy. Ms. Sage, the former employee, alleged that her dismissal was unjust and contrary to the principles of fairness as outlined in the Fair Work Act 2009. Tommy Bahama Ltd defended the dismissal, asserting that it was conducted in accordance with their employment policies and the applicable employment laws.

The central legal issues before the Commission involved whether the dismissal was harsh, unjust, or unreasonable, and if the employer had followed the correct procedures. Specifically, the Commission examined the procedural fairness in the handling of Ms. Sage's termination, whether there was a valid reason for dismissal, and if the employer's actions were proportionate to the alleged misconduct. The discussion also encompassed whether there were mitigating factors that could influence the fairness of the dismissal.

In its decision, the Commission found that while the employer had grounds for dismissal based on misconduct, the process leading up to the termination lacked procedural fairness. The employer did not provide adequate opportunity for Ms. Sage to respond to the allegations and did not consider relevant mitigating circumstances. Consequently, the Commission concluded that the dismissal was unfair and ordered reinstatement along with compensation for lost earnings and entitlements. The Commission also highlighted the importance of following due process in employment terminations to uphold the principles of fairness in the workplace.

Jodie Sage v Tommy Bahama Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established