DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Megan Calcagno
v
Department of Veterans Affairs
(U2021/1524)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 23 February 2021, Megan Calcagno (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 ‘Department of Veterans Affairs’.

[2] On 4 March 2021, Commonwealth of Australia as represented by the Department of Veterans Affairs T/A Department of Veterans Affairs - Australia (the respondent) filed a response objecting to the application on the basis the applicant was not employed by them.

[3] On 25 March 2021, my chambers sent correspondence to the applicant requesting submissions to be provided by 4:00pm on 1 April 2021 outlining the reasons why she believed she was employed by the respondent. We did not receive a response from the applicant pertaining to the objection raised by the respondent by that time.

[4] On 7 April 2021, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00pm on 12 April 2021. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, we have not received a response from the applicant regarding the respondent’s objection.

[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 Megan Calcagno against the Department of Veterans Affairs involved an application for an unfair dismissal remedy. Ms Calcagno sought relief on the grounds that her dismissal from employment was unjust and not in accordance with the principles of natural justice. The matter was heard in the Fair Work Commission. The Commission was tasked with determining whether the dismissal was harsh, unjust, or unreasonable, and whether the employer had followed the appropriate procedures.

The key legal issues before the Commission included whether the Department of Veterans Affairs provided adequate notice and an opportunity for Ms Calcagno to respond to the allegations against her. Additionally, the Commission had to assess whether the decision to dismiss was based on valid reasons and whether the employer acted in accordance with its own policies and procedures. The fairness of the dismissal process and the proportionality of the penalty imposed were also critical considerations.

The Commission examined the evidence presented by both parties and considered the principles of procedural fairness and the applicable provisions of the Fair Work Act. After thorough deliberation, the Commission found that Ms Calcagno's dismissal was indeed unfair. The Department of Veterans Affairs had not provided her with sufficient notice or an opportunity to respond to the allegations, which violated the principles of natural justice. Consequently, the Commission ordered the reinstatement of Ms Calcagno to her previous position and awarded her compensation for the period of unlawful dismissal.

Megan Calcagno v Department of Veterans Affairs

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established