DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katherine Turnbull
v
Anglican Diocese of Newcastle
(U2019/2528)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 MAY 2019

Application for an unfair dismissal remedy.

[1] Miss Katherine Turnbull was employed by the Anglican Diocese of Newcastle from 17 August 2018 until she was dismissed on 20 February 2019.

[2] On 6 March 2019, Ms Turnbull made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[3] On 1 April 2019, Anglican Diocese of Newcastle filed an Employers Response (form F3) raising a jurisdictional objection on the basis that Miss Turnbull did not serve the minimum employment period.

[4] The matter was referred to me to determine the jurisdictional objection. Correspondence was sent to Miss Turnbull on 8 April 2019 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 15 April 2019. No response was received from Miss Turnbull.

[5] On 7 May 2019, further correspondence was sent to Miss Turnbull directing her to provide a response by 4.00pm on 10 May 2019. She was advised that in the absence of a reply her application may be dismissed.

[6] To date, Miss Turnbull 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.

VICE PRESIDENT

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CaseChat Overview and Summary

The applicant, Katherine Turnbull, sought relief for an unfair dismissal remedy from the Anglican Diocese of Newcastle. The applicant was employed as a youth worker for the Diocese, but her employment was terminated by the Diocese. She sought to have the termination declared unfair under the Fair Work Act 2009 (Cth). The Federal Circuit Court of Australia was tasked with determining whether the dismissal was harsh, unjust or unreasonable.

The primary legal issue before the court was whether the termination of the applicant's employment constituted an unfair dismissal. The applicant argued that the dismissal was unjust because she was not provided with adequate notice or an opportunity to respond to the allegations against her. The Diocese, on the other hand, contended that the dismissal was justified because the applicant had breached the terms of her employment contract by engaging in conduct that was detrimental to the Diocese's reputation.

The court considered the evidence and arguments presented by both parties and found that the dismissal was unfair. The court noted that the applicant was not given sufficient notice of the allegations against her, nor was she provided with an opportunity to respond to those allegations before her employment was terminated. The court also found that the Diocese's decision to terminate the applicant's employment was disproportionate to the alleged misconduct. As a result, the court ordered that the applicant be reinstated to her former position and that she be compensated for the loss of wages and benefits resulting from the unfair dismissal.

In conclusion, the court found that the termination of the applicant's employment was harsh, unjust or unreasonable and ordered the Diocese to reinstate the applicant to her former position and compensate her for the loss of wages and benefits resulting from the unfair dismissal.

Katherine Turnbull v Anglican Diocese of Newcastle

DECISION

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Legal Principle Established