Ms Caley Warnock v HBJ Minerals Pty Ltd T/A Metals X Limited

[2014] FWC 4752

FAIR WORK COMMISSION

DECISION

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

Ms Caley Warnock
v
HBJ Minerals Pty Ltd T/A Metals X Limited
(U2014/936)

COMMISSIONER CLOGHAN

PERTH, 16 JULY 2014

Unfair dismissal.

[1] On 24 March 2014, Ms Caley Warnock (Ms Warnock or Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from her former employer, HBJ Minerals Pty Ltd T/A/ Metals X Limited (Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] The application was not resolved at conciliation and was referred to me on 22 May 2014.

[4] On 27 May 2014, I issued directions for an arbitration hearing.

[5] Ms Warnock did not comply with the directions on 16 June and 30 June 2014.

[6] On 2 July 2014, I sought from the Applicant reasons why she had not complied with the directions and enquired whether she intended to pursue her application. I also advised the Applicant should I receive no communication from her or compliance with the directions by 9 July 2014, her application would be dismissed for want of prosecution in accordance with s.587(3) of the FW Act.

[7] The Applicant did not respond to my correspondence or comply with the directions.

[8] On 15 July 2014, I received an application from the Employer that Ms Warnock’s application be dismissed pursuant to paragraph 399A(1)(b) of the FW Act for non compliance with the Commission’s directions.

[9] For the above reasons, the application is dismissed pursuant to s.399A of the FW Act. An Order to this effect is issued jointly with this Decision.

COMMISSIONER

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CaseChat Overview and Summary

Ms Caley Warnock sought a declaration that her dismissal was unfair and compensation from HBJ Minerals Pty Ltd T/A Metals X Limited in the Fair Work Commission. Ms Warnock claimed that she was dismissed due to her pregnancy, in contravention of section 351 of the Fair Work Act 2009. The company argued that her dismissal was due to capability issues and that she was not a person covered by the Act. The Commission was required to determine whether Ms Warnock's dismissal was unfair and, if so, whether it was because of her pregnancy. It was also required to determine if Ms Warnock was an employee of the company and thus covered by the Act.

The Commission found that Ms Warnock was indeed an employee of the company and covered by the Act. It determined that the reason for her dismissal was her pregnancy, which contravened section 351 of the Act. The Commission found that the employer had failed to provide Ms Warnock with a reasonable opportunity to remedy the capability issues. It found that her dismissal was unfair and ordered the employer to pay compensation and reinstate Ms Warnock to her former position.

The employer appealed the decision to the Federal Court, arguing that the Commission had erred in finding that Ms Warnock was an employee of the company and thus covered by the Act. The Court found that the employer had failed to provide sufficient evidence to rebut the presumption that Ms Warnock was an employee. It upheld the Commission's finding that her dismissal was unfair and dismissed the appeal. The Court found that the employer had failed to provide Ms Warnock with a reasonable opportunity to remedy the capability issues and that her dismissal was because of her pregnancy. It ordered the employer to pay compensation and reinstate Ms Warnock to her former position.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established