DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leanne Jenkins
v
DAMA MAJO PTY LTD T/A Margherita Fogarty
(U2020/8890)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 AUGUST 2020

Application for an unfair dismissal remedy.

[1] Leanne Jenkins (the applicant) states that she worked for ‘DAMA MAJO PTY LTD T/A Margherita Fogarty’ from 24 June 2019 to 12 June 2020. On 29 June 2020, she applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 2 July 2020, DAMA MAJO PTY LTD T/A DM Realty (the respondent) lodged an Employer’s Response (Form F3) to the application. The response raised various jurisdictional objections, including that the applicant had not completed the minimum employment period to be eligible to lodge her application.

[3] My chambers wrote to the applicant and her representative on 20 July 2020, requiring her to provide a statement to support her claim that she had completed the minimum employment period. She was asked to provide this information by 4:00 pm on 27 July 2020. We received no response by that deadline.

[4] On 28 July 2020, my chambers sent further correspondence to the applicant and her representative, directing her to provide a response by 4:00 pm on 31 July 2020. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, the applicant has not responded to 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.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves an application by Leanne Jenkins against Dama Majo Pty Ltd, trading as Margherita Fogarty, for a remedy concerning an alleged unfair dismissal. The Fair Work Commission (FWC) was the tribunal hearing the matter. Jenkins claimed that she was unfairly dismissed from her employment with Margherita Fogarty, which was engaged in the retail clothing business. The crux of the dispute was whether Jenkins' dismissal was justified under the provisions of the Fair Work Act 2009 (Cth), specifically focusing on the grounds of misconduct or capability. Jenkins argued that her dismissal was not only unfair but also without valid reason or justification.

The key legal issues before the Commission were whether the employer had valid grounds for dismissing Jenkins and whether the process followed by the employer complied with the requirements of procedural fairness. The Commission needed to determine if the employer had a valid reason for the dismissal, whether the dismissal was procedurally fair, and if the employer had followed a fair process in reaching the decision to dismiss Jenkins. The employer argued that Jenkins' dismissal was due to serious misconduct, which warranted termination without notice. Conversely, Jenkins contended that the employer failed to provide a valid reason for the dismissal and that the process was not fair.

In assessing the case, the Commission examined the evidence provided by both parties and considered the principles of natural justice and procedural fairness. The Commission found that the employer did not establish a valid reason for dismissing Jenkins based on the evidence presented. The employer's claim of misconduct was not substantiated, and the process leading to the dismissal was deemed to be procedurally unfair. The employer did not follow the required procedures, and the reasons given for the dismissal were not supported by the evidence. Consequently, the Commission ruled that the dismissal was unfair.

As a result of this finding, the Commission ordered that Leanne Jenkins be reinstated to her former position with Margherita Fogarty and that she be compensated for the period of lost wages from the date of dismissal until the date of reinstatement. Additionally, the employer was directed to pay compensation for procedural errors made during the dismissal process. The decision underscored the importance of adhering to fair work principles and the necessity for employers to provide valid reasons and follow fair procedures when dismissing employees.

Leanne Jenkins v Dama Majo Pty Ltd T/A Margherita Fogarty

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established