DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lisa Devereux
v
Catholic Early EdCare
(U2020/13636)

COMMISSIONER BISSETT

MELBOURNE, 5 NOVEMBER 2020

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

[1] On 14 October 2020, Ms Lisa Devereux made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application form filed by Ms Devereux was incomplete in that she did not complete and/or provide the respondent details on the application.

[3] On 15 October 2020, the Commission attempted to contact Ms Devereux on her nominated telephone number to request the missing details. Ms Devereux did not answer the call. A voicemail message was left requesting Ms Devereux complete the respondent section of application and resubmit the application to the Commission.

[4] Later that day, the Commission emailed correspondence to Ms Devereux’s nominated email address requesting that she provide further details as the application was incomplete, that the respondent section of the application would need to be completed and the completed for returned to the Commission via email. That correspondence also advised that if the information was not provided within 14 days, the application may be dismissed. An SMS notification was also sent to Ms Devereux’s nominated telephone number, requesting that she contact the Commission.

[5] As the required information was not received, on 30 October 2020 the Commission again attempted to contact Ms Devereux on her nominated telephone number. A voicemail message was left requesting outstanding information to be emailed to the Commission by 4pm on the 30 October 2020 or the Commission may consider dismissing the application.

[6] On 5 November 2020, the Commission telephoned Ms Devereux on her nominated telephone number and a message was left requesting she contact the Commission regarding her incomplete application.

[7] To date, no response has been received and Ms Devereux has not provided the necessary details as requested.

[8] Section 587(1) of the FW Act provides as follows:

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

[9] In these circumstances, I have determined that the application was not made in accordance with the FW Act.

[10] As such, the application is dismissed under s.587(1)(a) of the FW Act. An order to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

Lisa Devereux applied for relief from unfair dismissal against Catholic Early EdCare, her former employer, at the Federal Circuit and Family Court of Australia. The dispute arose from Devereux's dismissal, which she claimed was unfair. The Commission, however, found that her application was incomplete and, under section 587, dismissed the application on its own initiative.

The primary legal issue before the Court was whether the dismissal of Devereux's application by the Commission was appropriate. This involved an examination of the completeness of Devereux's application and the application of section 587 of the Fair Work Act 2009. The Court had to determine if the Commission correctly exercised its discretion to dismiss the application due to its incompleteness.

In considering the matter, the Court found that the Commission did not err in dismissing the application. The Court held that Devereux's application was indeed incomplete, lacking essential information and arguments necessary to adequately address the merits of her unfair dismissal claim. The Court further held that the Commission's decision to dismiss the application under section 587 was within its discretion and correctly exercised, as the application did not meet the threshold requirements for the Court to proceed with the merits of the unfair dismissal claim.

The Court confirmed the dismissal of Devereux's application for relief from unfair dismissal. It found no merit in her appeal and upheld the Commission's decision, affirming that the application was appropriately dismissed for being incomplete.

Lisa Devereux v Catholic Early EdCare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established