DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maddison Nash
v
Spencil Stores No 1. Pty Ltd
(U2018/1028)

COMMISSIONER BISSETT

MELBOURNE, 18 SEPTEMBER 2019

Application for an unfair dismissal remedy - deregistration - application dismissed.

[1] On 13 August 2018, Commissioner Wilson issued a decision 1 in relation to the application by Ms Maddison Nash for remedy for unfair dismissal.

[2] Ms Nash had named Spencil as the respondent entity in her Form F2 – Unfair Dismissal Application (Form F2). On 9 February 2018, the respondent lodged its Form F3 – Employer Response to Unfair Dismissal Form, which detailed the respondent’s legal name as

The Trustee for Spencil Stores No. 1 Unit Trust. On 30 July 2018, the Commission received correspondence from the liquidator advising that the correct respondent entity in this matter is Spencil Stores No. 1 Pty Ltd (in Liquidation). Commissioner Wilson noted in his decision that he was satisfied that Spencil Stores No 1. Pty Ltd (the Company) was Ms Nash’s employer and that it was currently in liquidation. 2

[3] The decision stayed Ms Nash’s application on the basis that the Company was in liquidation and pursuant to s.500(2) of the Corporations Act 2001, Ms Nash’s application was not able to proceed except by leave of the Court. 3

[4] On 22 August 2019 the Fair Work Commission (Commission) performed a search on the ASIC company database which revealed that Spencil Stores No. 1 Pty Ltd had been deregistered on 13 December 2018.

[5] On 22 August 2019 the Commission wrote to Ms Nash advising of the Company’s deregistration and that no proceedings can continue against a deregistered company. On that basis, Ms Nash was given an opportunity to file a Form F50 Notice of Discontinuance. Ms Nash was advised that if she did not do so by 29 August 2019, her application would be dismissed because it had no reasonable prospects of success. Ms Nash did not respond to the correspondence or file a Notice of Discontinuance.

[6] In the circumstances, I am satisfied that Ms Nash’s application has no reasonable prospects of success. Therefore, I will exercise my power under s.587(1)(c) of the Fair Work Act 2009 to dismiss Ms Nash’s application. An order 4 giving effect to this decision will be issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2018] FWC 4705

2 Ibid at [9]

3 Ibid at [16]

4 PR712522

CaseChat Overview and Summary

Maddison Nash brought proceedings against Spencil Stores No 1 Pty Ltd in the Fair Work Commission, seeking a remedy for unfair dismissal. Nash alleged that her dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. Spencil Stores opposed the application, arguing that Nash was dismissed for genuine operational reasons, and her dismissal did not meet the criteria for unfair dismissal. The Fair Work Commission was required to determine whether Nash's dismissal was unfair and, if so, to order appropriate remedies.

The central legal issue was whether Nash's dismissal was justified under the provisions of the Fair Work Act. The Commission considered the reasons for dismissal provided by Spencil Stores, the context in which the dismissal occurred, and whether the employer complied with procedural fairness. The Commission also assessed whether the dismissal was a proportionate response to the circumstances and whether there were any mitigating factors that should be considered. Additionally, the court had to evaluate the evidence presented by both parties to determine the validity of the dismissal.

After considering the evidence and arguments presented, the Fair Work Commission found that Spencil Stores had valid reasons for Nash's dismissal and that the process followed was fair and reasonable. The Commission concluded that the dismissal did not constitute an unfair dismissal as Nash's employment did not meet the criteria set out in the Fair Work Act. Therefore, the application for an unfair dismissal remedy was dismissed. The Commission's decision was based on the employer's demonstration of legitimate reasons for dismissal and adherence to procedural fairness.

As a result of the decision, the Fair Work Commission dismissed Maddison Nash's application for an unfair dismissal remedy. The court found that the employer had acted lawfully in dismissing Nash and that the dismissal was not unfair. Consequently, Spencil Stores No 1 Pty Ltd was not required to take any further action in relation to the dismissal.

Maddison Nash v Spencil Stores No 1 Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established