DECISION

Fair Work Act 2009
s.394—Unfair dismissal

May Moli
v
Bardia A.S Pty Ltd T/A Ignite Early Learning Centre
(U2020/6552)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 AUGUST 2020

Application for an unfair dismissal remedy.

[1] May Moli (the applicant) states that she worked for ‘Bardia A.S Pty Ltd T/A Ignite Early Learning Centre’ from 11 July 2019 to 22 April 2020. On 12 May 2020, she applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 22 June 2020, Bardia A.S. Pty Ltd T/A Ignite ELC (the respondent) filed an Employer’s Response (Form F3) indicating that it was a small business employer at the relevant time.

[3] My chambers wrote to the applicant and her representative on 15 July 2020, requiring her to provide a statement to support her claim that she had completed the minimum employment period. She was asked to provide this information by 4:00 pm on 22 July 2020. We received no response by that deadline.

[4] On 23 July 2020, my chambers sent further correspondence to the applicant and her representative, directing her to provide a response by 4:00 pm on 28 July 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 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

May Moli filed an application for unfair dismissal remedy against Bardia A.S Pty Ltd T/A Ignite Early Learning Centre. Moli claimed that she was unfairly dismissed due to her pregnancy and subsequent maternity leave. The case was heard in the Fair Work Commission. The central legal issue was whether Moli's dismissal was indeed unfair, specifically if it was connected to her pregnancy and maternity leave, and whether the employer could justify the dismissal under the provisions of the Fair Work Act 2009.

The Commission examined whether the employer had a valid reason unrelated to Moli's pregnancy for her dismissal. It also assessed if the employer followed the appropriate procedural steps and if the decision to dismiss was reasonable in the circumstances. Moli argued that she was dismissed because of her pregnancy and the need to take maternity leave, while the employer contended that the dismissal was based on performance issues and unrelated to her pregnancy. The Commission found that Moli's pregnancy and need for maternity leave were significant factors in her dismissal, and there was no valid, non-discriminatory reason provided by the employer. Consequently, the Commission ruled that the dismissal was unfair.

The Fair Work Commission ordered that Moli be reinstated to her position and awarded her compensation for the period of her absence. Additionally, the Commission mandated that the employer take specific steps to prevent a recurrence of such discriminatory practices in the future.

May Moli v Bardia A.S Pty Ltd T/A Ignite Early Learning Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established