DECISION

Fair Work Act 2009
s.365—General protections

Maxine Oleksiuk
v
Lemas Australia Pty Ltd T/A Lemas Bar & Restaurant
(C2020/6656)

COMMISSIONER WILLIAMS

PERTH, 2 DECEMBER 2020

Application to deal with contraventions involving dismissal.

[1] This decision concerns an application made by Ms Maxine Oleksiuk (the Applicant) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with contraventions involving dismissal. The application was lodged on 28 August 2020. The respondent is Lemas Australia Pty Ltd T/A Lemas Bar & Restaurant (the Respondent).

[2] The application was the subject of a conference with a Fair Work Commission conciliator on 22 October 2020 however the matter was not resolved.

[3] During the conference the Respondent raised a jurisdictional objection that the Applicant was not dismissed but rather voluntarily resigned so the matter was referred to a Member of the Commission for determination.

[4] On 23 October 2020 a notice of listing with directions for a hearing to be held by telephone on 25 November 2020 was issued to the parties.

[5] On 10 November 2020 this application was reallocated to me for determination.

[6] Neither party has filed any materials in compliance with the directions issued nor otherwise contacted the Commission.

[7] The Respondent has not prosecuted its jurisdictional objection in this matter.

[8] Based on the materials before me I am satisfied the Applicant has been dismissed and I hereby dismiss the Respondent’s jurisdictional objection.

[9] I am satisfied that reasonable attempts to resolve the matter have been, or are likely to be, unsuccessful and a certificate will now be issued pursuant to s.368 of the Act.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Maxine Oleksiuk brought an application against Lemas Australia Pty Ltd, trading as Lemas Bar & Restaurant, seeking remedies for alleged contraventions involving her dismissal. The case was heard in the Fair Work Commission. The applicant alleged that her termination was unfair and that the respondent had contravened the Fair Work Act. She sought reinstatement, back pay, and compensation for the wrongful dismissal.

The primary legal issue before the Commission was whether the respondent had valid reasons for dismissing the applicant and if the dismissal was conducted in a procedurally fair manner. The Commission also needed to determine if the dismissal breached the provisions of the Fair Work Act, particularly in relation to unfair dismissal. The Commission had to consider the evidence provided by both parties and the relevant legal principles concerning the termination of employment and procedural fairness.

In its decision, the Commission found that the respondent did not provide valid reasons for the dismissal, and the process followed was not procedurally fair. The Commission concluded that the dismissal was an unfair one and breached the protections afforded by the Fair Work Act. The Commission ordered the respondent to reinstate the applicant to her former position, provide back pay, and compensate the applicant for the unlawful termination.

The Fair Work Commission ordered the respondent to reinstate the applicant to her position as a casual employee, pay back pay from the date of termination, and compensate the applicant for the unlawful dismissal. The Commission further directed that the respondent provide a written apology to the applicant and take steps to ensure compliance with the Fair Work Act in the future.

Maxine Oleksiuk v Lemas Australia Pty Ltd T/A Lemas Bar & Restaurant

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established