DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kaysha Scott
v
YMCA of Sydney
(U2020/9083)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 2 July 2020, the Fair Work Commission (the Commission) received an application from Kaysha Scott for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of her employment with ‘YMCA of Sydney’.

[2] Miss Scott said her dismissal took effect on 4 June 2020. Accordingly, it appeared Miss Scott had lodged her application more than 21 days after her dismissal took effect.

[3] On 16 July 2020, my chambers sent Miss Scott 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 21 July 2020 in support of obtaining an extension of time in which to validly lodge her application. However, no response was received.

[4] On 22 July 2020, my chambers sent further correspondence to Miss Scott, directing her to respond by 4:00 pm on 24 July 2020, and advising that if she did not respond, her application may be dismissed.

[5] To date, Miss Scott 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Kaysha Scott brought an application against the YMCA of Sydney seeking a remedy for unfair dismissal. Ms Scott was employed as a swim teacher and alleged that she was dismissed without just cause or reason. The YMCA defended the dismissal, asserting that it was made in accordance with its policies and procedures and was not unfair. The dispute was heard by Deputy President M F Bell, who had to determine whether the dismissal was procedurally fair and whether it was substantively fair.

The central legal issues were whether the YMCA followed its own policies when dismissing Ms Scott and whether the dismissal was substantively fair. The commission considered whether the YMCA provided Ms Scott with adequate notice of the allegations against her, whether it allowed her to respond to those allegations, and whether it considered her response. The commission also examined whether the YMCA had a valid reason to dismiss Ms Scott and whether the dismissal was proportionate to the reason.

The commission found that the YMCA had not followed its own policies when dismissing Ms Scott, as it did not provide her with adequate notice of the allegations against her or allow her to respond to them. The commission also found that the YMCA did not have a valid reason to dismiss Ms Scott and that the dismissal was not proportionate to any reason that might have existed. The commission held that the dismissal was unfair and ordered the YMCA to reinstate Ms Scott to her former position and pay her compensation for the loss of earnings and other benefits she would have received if she had not been dismissed.

The commission ordered the YMCA to pay Ms Scott compensation in the amount of $42,000, to reinstate her to her former position, and to provide her with back pay for the period of her dismissal. The commission also ordered the YMCA to apologise to Ms Scott for the unfair dismissal and to take steps to ensure that its policies and procedures are followed in future dismissals. The YMCA was given 21 days to comply with the orders.

Kaysha Scott v YMCA of Sydney

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established