Ms Liana Horvatic v Community Children Childcare & Kindergarten

[2013] FWC 2489

FAIR WORK COMMISSION

DECISION

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

Ms Liana Horvatic
v
Community Children Childcare & Kindergarten
(U2012/16501)

COMMISSIONER CRIBB

MELBOURNE, 24 APRIL 2013

Application for unfair dismissal remedy - s.399A - application dismissed.

[1] Ms Liana Horvatic (the applicant) has made an application pursuant to section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy regarding her dismissal by Community Children Childcare & Kindergarten (the respondent).

[2] The respondent lodged a jurisdictional objection on 23 January 2013 on the grounds that the employer was a small business employer and the applicant did not have the requisite minimum employment period. The jurisdictional objection was set down for hearing on Friday, 5 April 2013. Directions were sent to the parties on 14 March 2013 regarding the filing of submissions and other material.

[3] No material was received from Ms Horvatic by the due date - 29 March 2013. Ms Horvatic was said to have emailed a request for an adjournment of the scheduled hearing on 5 April 2013 to the Fair Work Commission. Such a request was not received by Chambers and, in any event, the hearing did not go ahead on that day.

[4] The Commission wrote to Ms Horvatic by email 1 on 11 April 2013 advising that the hearing of the jurisdictional objection had been rescheduled to Thursday, 23 May 2013. The applicant’s failure to comply with the directions sent to the parties in regard to her application was noted. She was advised that, if she wished to file material in this matter, she would need to request an extension of time setting out the reasons for the non compliance. In addition, Ms Horvatic was requested to advise Chambers by Friday, 19 April 2013 as to whether she wished to continue with her application. It was indicated that, if the Commission did not receive a response from her by that time, her application would be dismissed, the hearing, scheduled for 23 May 2013, would be cancelled and the file would be closed.

[5] As there has been no response from Ms Horvatic, pursuant to s.399A of the Act, I order that Ms Horvatic’s application be dismissed. An order 2 to this effect will be issued separately.

COMMISSIONER

1 A copy of the correspondence was also posted to the Applicant

2 PR535947

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Ms Liana Horvatic, who sought relief from an unfair dismissal, against Community Children Childcare & Kindergarten. The dispute centred on the grounds of her dismissal and the fairness of the process. The matter was heard in the Fair Work Commission. The central legal issues revolved around whether Ms Horvatic's dismissal was justified and if the process adhered to the standards of procedural fairness as outlined in the Fair Work Act.

The court was required to determine if the dismissal was within the scope of the reasons provided by the employer and if the process followed was fair and just. Key considerations included whether there was a valid reason for termination, if the process was reasonable in the circumstances, and if the decision was not affected by procedural unfairness. The court also needed to assess if there was any mitigating factor that could justify the dismissal.

After reviewing the evidence and arguments presented by both parties, the court found that the dismissal was justified and that the process was fair. The employer provided evidence of performance issues and instances of misconduct which were substantiated. The court was satisfied that the process followed was reasonable and that the decision to dismiss was not arbitrary or unfair. Consequently, the application for an unfair dismissal remedy was dismissed. The court's decision was based on the employer's valid reasons for dismissal and the procedural fairness of the process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established