| [2025] FWC 420 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Louise McCue
v
Aboriginal Hostels Limited
(U2024/11200)
| COMMISSIONER RIORDAN | SYDNEY, 1 APRIL 2025 |
Application for an unfair dismissal remedy
On 21 September 2024, Ms Louise McCue (the Applicant) filed an application (the Application) with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the FW Act). The Applicant alleges that she was dismissed by Aboriginal Hostels Limited (the Respondent) on 19 September 2024.
On 15 October 2024, the Respondent filed its F3 – Employer response to unfair dismissal application, raising a jurisdictional objection on the grounds that the Applicant was not dismissed, rather, her employment ceased at the end of her non-ongoing employment on 19 September 2024.
Telephone Conferences were conducted in this matter on 15 November 2024 and 9 December 2024, however, a resolution was unable to be reached and the Respondent pressed that its jurisdictional objection be determined in this matter in the first instance.
Directions were issued for filing of jurisdictional materials, and a Jurisdictional Hearing was conducted by Video via Microsoft Teams on 11 February 2024.
This decision determines the jurisdictional objection only.
Relevant Provisions of the Act
Section 394 of the FW Act provides that:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Section 385 provides the meaning of ‘unfairly dismissed’ as follows:-
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not…
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- [2025] FWC 420
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