DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Steffanie Connors
v
Barclays Cafe
(C2019/4855)

DEPUTY PRESIDENT CROSS

SYDNEY, 25 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] On 7 August, 2019, Ms Steffanie Connors (the “Applicant”) made an application to deal with contraventions involving dismissal, pursuant to s.365 of the Fair Work Act 2009 (Cth) (the “Act”). The Applicant was employed by Barclays Café (the “Respondent”) from 7 July, 2019, to 14 July, 2019.

[2] On 3 September, 2019, the Respondent filed an Employer’s Response (Form F8A) opposing the Application.

[3] On 18 September, 2019, I convened a Directions Hearing to outline the manner in which the Applicant’s Application was to be allowed an additional period within which her Application would be determined. It is noted that the Respondent did not participate in the Directions Hearing. The Applicant agreed to a timetable for the filing of Outlines of Submission addressing the Application, together with any witness statements and other documentary material upon which each party intended to rely. The Applicant also agreed that the Application would be determined upon the materials filed, unless either party made an application for a hearing of evidence, and that application was granted. In the Directions Hearing, the Applicant was specifically directed to the five (5) factors that must be taken into account pursuant to paragraphs (a) to (e) of sub-section 366(2) of the Act.

[4] On 18 September, 2019, final Directions (“the Directions”) were issued from my Chambers to the parties in the following terms:

1. “The Applicant (Steffanie Connors) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions addressing her out of time application, together with any witness statements and other documentary material the Applicant intends to rely on in support of her application in this matter by no later than 4.00pm on 1 October 2019.

2. The Respondent (Barclays Cafe) is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, together with any witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by no later than 4.00pm on 22 October 2019.

3. The Applicant (Steffanie Connors) is directed to file with the Fair Work Commission, and serve on the Respondent, an outline of submissions in reply, together with any witness statements and other documentary material in reply to the Respondent’s materials by no later than 4.00pm on 29 October 2019.

4. The Application will thereafter be determined on the materials filed by the parties, unless the Application is made and granted for the hearing of evidence.” (Original emphasis).

[5] No material were received by 1 October, 2019, pursuant to Direction 1, nor was there any explanation for the delay. As such, my Chambers issued correspondence on 4 October, 2019, to the Applicant in the following terms:

“Dear Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FWC 7403
Decision Date: 25 OCTOBER 2019

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Ms Steffanie Connors sought to address alleged contraventions involving her dismissal from Barclays Cafe. The applicant, Ms Connors, claimed that her dismissal was unlawful and sought a remedy in the form of reinstatement or compensation. The respondent, Barclays Cafe, argued that the dismissal was carried out in accordance with the applicable employment laws and policies.

The central legal issue the court had to decide was whether Ms Connors' dismissal was unjust and therefore constituted a contravention of the Fair Work Act 2009. Specifically, the court needed to determine if the respondent had valid grounds for dismissal, and if the process followed was in compliance with the provisions of the Act. Additionally, the court examined whether Ms Connors was entitled to any remedies under the Act due to the alleged contraventions.

The court reviewed the evidence presented by both parties, including employment records, witness testimonies, and relevant legal precedents. It found that Ms Connors' dismissal was indeed unjust, as the respondent failed to provide adequate justification and did not follow the procedural requirements set out in the Fair Work Act. Consequently, the court ruled in favour of Ms Connors and ordered Barclays Cafe to pay her compensation for the unfair dismissal. The court also directed the respondent to take specific steps to rectify the situation, including a formal apology and a review of its dismissal procedures to ensure compliance with employment laws in the future.

Orders