DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Amy Margaret Hemingway
v
Ebb and Tide Cafe
(U2017/1295)

COMMISSIONER RIORDAN

SYDNEY, 25 MAY 2017

Application for an unfair dismissal remedy.

[1] Ms Amy Hemingway was employed by Ebb and Tide Cafe between 8 December 2014 and 5 February 2017.

[2] Ms Hemingway did not attend the teleconference that was convened by the Fair Work Commission’s Conciliator on 10 April 2017.

[3] The matter was listed before the Fair Work Commission (FWC), as presently constituted, for a conciliation / directions conference on 2 May 2017 by telephone. Ms Hemingway was sent an email reminder of this conference on 1 May 2017 which included the following sentence:

“This is formal notification, that if you fail to participate in the teleconference before Commissioner Riordan tomorrow, your application may be dismissed in your absence.”

[4] On 23 May 2017, my Associate sent an email to Ms Hemingway seeking an explanation for her non-attendance at the conciliation / directions conference. Ms Hemingway did not respond.

Relevant legislation

[5] Section 587 of the Fair Work Act, 2009 (the Act) states:

Section 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.

Consideration

[6] Ms Hemingway has failed to participate in the processes of the Fair Work Commission on a number of occasions. Attempts to contact Ms Hemingway by telephone and email have proven to be unsuccessful. I am of the view that Ms Hemingwya’s application was vexatiously submitted.

[7] After considering all of the circumstances, and taking into account section 587 of the Act, I have decided to dismiss Ms Hemingway’s application for an unfair dismissal remedy.

[8] I so Order.

COMMISSIONER

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CaseChat Overview and Summary

Ms Amy Margaret Hemingway sought unfair dismissal remedy against her former employer, Ebb and Tide Cafe. The matter was heard in the Fair Work Commission. Ms Hemingway claimed that her dismissal was unfair due to her being subjected to sexual harassment by a manager of the cafe and her employer's failure to take appropriate action in response to her complaints.

The legal issues before the Commission were whether Ms Hemingway's dismissal was harsh, unjust, or unreasonable, and whether the employer had failed to take reasonable steps to address the sexual harassment. The Commission had to determine if the employer had breached the general protection against unfair dismissal under the Fair Work Act 2009. It was also necessary to consider whether the employer had taken reasonable steps to prevent the sexual harassment and to address it when it occurred.

The Commission found that Ms Hemingway had experienced sexual harassment by a manager, and that the employer had not taken reasonable steps to address the harassment. However, the Commission concluded that her dismissal was not harsh, unjust, or unreasonable because it was based on her conduct following the harassment, rather than the harassment itself. The employer had warned Ms Hemingway about her conduct, and her dismissal followed a final warning. The Commission determined that the employer had not breached the general protection against unfair dismissal, and dismissed the application.

The Fair Work Commission dismissed the application for an unfair dismissal remedy.

Ms Amy Margaret Hemingway v Ebb and Tide Cafe

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established