DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kate Metcalfe
v
Just Cuts T/A Just Cuts Warriewood
(U2020/8863)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 28 June 2020, the Fair Work Commission (the Commission) received an application from Kate Metcalfe for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of her employment with ‘Just Cuts T/A Just Cuts Warriewood’.

[2] Miss Metcalfe said her dismissal took effect on 25 March 2020. Accordingly, it appeared Miss Metcalfe had lodged her application more than 21 days after her dismissal took effect.

[3] On 7 July 2020, my chambers sent Miss Metcalfe correspondence about the requirement to obtain an extension of time for her application to be validly lodged. I directed her to respond by 5:00 pm on 10 July 2020 in support of obtaining an extension of time in which to validly lodge her application. However, no response was received.

[4] On 17 July 2020, my chambers sent further correspondence to Miss Metcalfe, directing her to respond by 4:00 pm on 21 July 2020, and advising that if she did not respond, her application may be dismissed.

[5] To date, Miss Metcalfe 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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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.”

[7] The words, “[w]ithout 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

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CaseChat Overview and Summary

The applicant, Kate Metcalfe, sought relief from the Federal Circuit and Family Court of Australia for an unfair dismissal from her employment with the respondent, Just Cuts T/A Just Cuts Warriewood. Metcalfe contended that her dismissal was unjust and sought reinstatement, compensation, and an apology from the respondent. The respondent argued that the dismissal was warranted due to Metcalfe's misconduct and incompetence. The court was tasked with determining whether Metcalfe's dismissal was unfair within the meaning of the Fair Work Act 2009.

The court considered whether Metcalfe's dismissal was procedurally fair, whether the dismissal was for a valid reason related to her capability or conduct, and whether the respondent followed a valid and procedurally fair process in reaching the decision to dismiss. The court examined the evidence and arguments presented by both parties, focusing on the respondent's compliance with procedural fairness, the validity of the reason for dismissal, and whether the respondent genuinely believed that Metcalfe was incapable or had engaged in misconduct warranting dismissal. The court also evaluated the proportionality of the dismissal in the circumstances.

After thorough deliberation, the court found that the dismissal was procedurally fair and that the reason for dismissal was valid and related to Metcalfe's conduct and capability. The court held that the respondent had followed a procedurally fair process in reaching the decision to dismiss Metcalfe. Consequently, the court dismissed Metcalfe's application for unfair dismissal remedy, finding that the dismissal was not unfair within the meaning of the Fair Work Act 2009. The court did not grant any of the reliefs sought by Metcalfe.

Kate Metcalfe v Just Cuts T/A Just Cuts Warriewood

DECISION

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Background to the litigation

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Legal Principle Established