Louise McCue v Aboriginal Hostels Limited - [2025] FWC 420

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Louise McCue v Aboriginal Hostels Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] FWC 420
Decision Date: 1 APRIL 2025

CaseChat Overview and Summary

Louise McCue (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal by Aboriginal Hostels Limited (the Respondent) under section 394 of the Fair Work Act 2009. The Respondent raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed, but rather her employment ceased at the end of her non-ongoing employment on 19 September 2024. The Commission was required to determine whether the Applicant had been dismissed within the meaning of section 386 of the Fair Work Act. Commissioner Riordan considered the relevant statutory provisions, the submissions of both parties, and evidence provided. The Commission found that the Applicant was dismissed by the Respondent and dismissed the jurisdictional objection. The Commission found that the Applicant's employment was terminated by the Respondent's decision to abolish her position and then vary her contract, rather than at the end of the period specified in her contract. The Commission found that the Applicant was promised an ongoing role if she was able to gain Australian citizenship, and that this commitment was not honoured by the Respondent. The Commission found that the Respondent's use of non-ongoing employment agreements and the subsequent actions taken by the Respondent amounted to a dismissal within the meaning of section 386 of the Fair Work Act. The Commission found that the Respondent's actions demonstrated an intention to end the employment relationship, and that the Respondent's jurisdictional objection was dismissed.

Orders