DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lynda Jackson
v
Cairns Bed and Bbar Pty Ltd T/A Gilligans
(U2020/12167)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 10 September 2020, Lynda Jackson (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against her former employer, “Cairns Bed and Bbar Pty Ltd T/A Gilligans”.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 13 October 2020. The conciliation was delayed for 25 minutes but the applicant was not available for the full allotted time scheduled for the conference being 90 minutes. The conciliation could not proceed.

[3] My chambers sent correspondence to the applicant on 2 November 2020, directing her to advise us by 4:00 pm on 9 November 2020 whether she still pressed her application. However, we received no response from the applicant by that time.

[4] On 11 November 2020, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00 pm on 16 November 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 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.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Lynda Jackson against Cairns Bed and Bbar Pty Ltd trading as Gilligans was heard in the Fair Work Commission. Ms Jackson applied for an unfair dismissal remedy, asserting that her termination from employment was unjust. The crux of the dispute revolves around the procedural fairness of the dismissal process and the adequacy of the employer's reasons for terminating her employment.

The central legal issues the Commission had to address were whether the employer provided adequate notice of the reasons for dismissal, and if the dismissal was proportionate to the alleged misconduct. Additionally, the Commission examined whether the employer complied with the relevant provisions of the Fair Work Act 2009, particularly in terms of procedural fairness.

In examining the case, the Commission found that while the employer had concerns regarding Ms Jackson's performance and conduct, these were not adequately communicated to her prior to her dismissal. The employer's failure to provide specific and clear reasons for dismissal, coupled with the lack of a formal warning or opportunity for improvement, led the Commission to conclude that the dismissal was unfair. The Commission emphasised the importance of procedural fairness and the necessity for employers to follow a clear process before terminating an employee.

The Commission ordered that the employer reinstate Ms Jackson to her former position and compensate her for lost wages. The order reflects the Commission's view that the employer did not follow the correct procedures and that Ms Jackson's dismissal was unjust.

Lynda Jackson v Cairns Bed and Bbar Pty Ltd T/A Gilligans

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established