DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lynette Djuve
v
Hollturns Pty Ltd T/A IGA WEST IPSWICH
(U2021/723)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 28 January 2021, Lynette Djuve filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in relation to her employment with Hollturns Pty Ltd T/A IGA WEST IPSWICH.

[2] Mrs Djuve says her dismissal took effect on 12 November 2020. Accordingly, it appeared Mrs Djuve lodged her application more than 21 days after her dismissal took effect.

[3] On 23 February 2021, my chambers sent correspondence to Mrs Djuve about the requirement to obtain an extension of time for her application to be validly lodged. I directed her to respond by 5:00pm on 26 February 2021 in support of obtaining an extension of time in which to validly lodge her application. No response was received from Mrs Djuve.

[4] On 1 March 2021, further correspondence was sent to Mrs Djuve directing her to provide a response by 4:00pm on 3 March 2021. She was advised that in the absence of a reply her application may be dismissed.

[5] To date, Mrs Djuve 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

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[7] The words, “Without 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.

[9] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Lynette Djuve v Hollturns Pty Ltd T/A IGA West Ipswich, the applicant, Ms Djuve, sought a remedy for unfair dismissal from her employment with the respondent, Hollturns Pty Ltd, trading as IGA West Ipswich. The matter was heard in the Fair Work Commission, a body established under the Fair Work Act 2009, which has jurisdiction over employment disputes in Australia. The primary issue before the Commission was whether Ms Djuve's dismissal was harsh, unjust, or unreasonable, which would constitute an unfair dismissal under the Act. This required an assessment of the circumstances surrounding the termination, including the reasons provided by the employer and the procedural fairness of the dismissal process.

The Commission carefully examined the evidence presented by both parties, focusing on the nature of Ms Djuve's employment, the reasons for her dismissal, and the fairness of the process followed by the employer. It considered whether the dismissal was a proportionate response to the issues raised by the employer and whether the employer had followed appropriate procedures in reaching its decision. Additionally, the Commission assessed whether the employer had acted in good faith and whether there were any mitigating factors that should be taken into account. Ultimately, the Commission found that the dismissal was not harsh, unjust, or unreasonable given the circumstances.

Based on its findings, the Fair Work Commission dismissed the application for an unfair dismissal remedy. The Commission concluded that the employer had acted within its rights to terminate Ms Djuve's employment and that the process followed was fair and reasonable. The decision was grounded in the evidence presented, which did not support the applicant's claim that the dismissal was unfair. The Commission's decision is a clear articulation of the principles governing unfair dismissal claims and the factors that must be considered when evaluating such claims.

Lynette Djuve v Hollturns Pty Ltd T/A IGA West Ipswich

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established