Mirna Shawel v The Trustee for Kinderoos Trust T/A Kindaroos Summary

[2014] FWC 337

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mirna Shawel
v
The Trustee for Kinderoos Trust T/A Kindaroos
(U2013/12071)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 JANUARY 2014

Application for relief from unfair dismissal discontinued.

[1] On 30 July 2013, Miss Mirna Shawel made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] The matter was listed for conciliation on Tuesday, 10 September 2013. The matter did not settle at conciliation.

[3] On Wednesday 25 September 2013, Ms Shawel verbally advised the Fair Work Commission (the Commission) that she no longer wanted to continue with her application. The Commission advised Ms Shawel of the formalities of discontinuing an application and asked Ms Shawel to complete a Form F50 - Notice of Discontinuance (Form F50). A Copy of a Form F50 was forwarded to Ms Shawel by post.

[4] The Commission attempted to contact Ms Shawel by telephone and sent correspondence by email on Friday 25 October 2013 and advised that her application remained open and that the Form F50 was required. To date the Commission has not received a completed Form F50.

[5] Having regard to the material before me, I am satisfied that given Ms Shawel’s advice, that she no longer wanted to prosecute her application, she intended to discontinue her application but has not filed a Form F50.

[6] Section 588 of the Act provides:

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.

[7] I have decided to waive compliance with the Fair Work Rules 2010 (the Rules).

[8] Rule 4 of the Rules provides that the Commission may dispense with compliance with the Rules. I have decided to waive compliance with the requirement that Ms Shawel file and serve a Form F50 as I am satisfied that Ms Shawel has discontinued her application.

[9] The application is therefore, discontinued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit Court, Mirna Shawel sought relief from an unfair dismissal by her former employer, The Trustee for Kinderoos Trust, trading as Kindaroos. The applicant, a former employee, argued that her dismissal was unjust and contrary to the Fair Work Act 2009. The court was tasked with assessing whether the dismissal was indeed unfair and, if so, what remedies might be appropriate.

The primary legal issue before the court was whether the applicant's dismissal was justified under the Fair Work Act. This required consideration of whether the dismissal was a case of genuine redundancy, as claimed by the respondent, or if it constituted an unfair dismissal. The court needed to evaluate the evidence presented on both sides, including the applicant's tenure, the nature of her role, and the circumstances leading to her dismissal.

The court concluded that the applicant's dismissal was not unfair. It found that the employer had acted reasonably and followed due process in terminating the applicant's employment. The evidence supported the employer's claim that the dismissal was due to genuine redundancy, as it resulted from a genuine restructure within the organisation. Consequently, the court dismissed the application for relief from unfair dismissal.

As a result of the court's findings, the application for relief from unfair dismissal was discontinued, and the applicant's claims were rejected. The court's decision was based on a thorough examination of the evidence and an application of the relevant provisions of the Fair Work Act.

Mirna Shawel v The Trustee for Kinderoos Trust T/A Kindaroos

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established