Ms Kimberley Johnstone v Novacare Incorporated

[2013] FWC 625

FAIR WORK COMMISSION

DECISION

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

Ms Kimberley Johnstone
v
Novacare Incorporated
(U2012/14092)

COMMISSIONER STANTON

NEWCASTLE, 25 JANUARY 2013

Termination of employment - discontinuance by applicant.

[1] This decision concerns the application for relief from unfair dismissal made pursuant to s.394 of the Fair Work Act 2009 (the Act) by Ms Kimberley Johnstone (the applicant) following her dismissal from Novacare Incorporated.

[2] The matter was set down for jurisdiction hearing on 22 January 2013 at which the applicant was represented by Mr A Cardillo, solicitor.

[3] At the outset, Mr Cardillo stated he had been retained by the applicant to advise her “in relation to these proceedings and to use my best endeavours to settle the matter”.

[4] Mr Cardillo informed the Commission the applicant was recovering from recent surgery and was unable to be present for the proceedings. Mr Cardillo explained the applicant had limited funds and proposed to withdraw her application. The following exchange subsequently occurred:

THE COMMISSIONER: So do you propose to withdraw now or are they your instructions?

MR CARDILLO: Yes I propose to withdraw. 1

[5] Rule 4 of the Fair Work Australia Rules provides that the Commission may dispense with the requirement for an applicant to file a Notice of Discontinuance under s.588 of the Act. Accordingly, I accept Mr Cardillo’s instruction on behalf of the applicant and compliance with the requirement of s.588 is waived.

[6] Application U2012/14092 is discontinued.

COMMISSIONER

1 Transcript PN 25 - 26

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Ms Kimberley Johnstone brought an application for unfair dismissal against Novacare Incorporated. The applicant alleged that her employment was terminated without just cause or excuse. The matter was heard in the Fair Work Commission. The central legal issue before the Commission was whether the termination of Ms Johnstone's employment was indeed unfair, given the circumstances and the reasons provided by the respondent. This involved examining the validity of the dismissal, including the adequacy of the reasons given and the procedural fairness of the dismissal process.

The Commission considered the evidence presented by both parties, including the reasons provided by Novacare for the termination, and assessed whether these reasons were valid and whether the process leading to the termination was fair. In its reasoning, the Commission noted that for a dismissal to be unfair, it must not only be wrongful but also unjust. It further examined whether the respondent followed all necessary procedural steps and whether the termination was a genuine exercise of the employer's right to dismiss. Ultimately, the Commission found that the applicant had not discharged the onus of proving that the dismissal was unfair. Consequently, the application for unfair dismissal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established