DECISION

Fair Work Act 2009
s.789GV - Application to deal with a dispute under Part 6-4C

Ms Veronica Jovanovski
v
TJX Australia
(C2020/3768)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 25 MAY 2020

Application to deal with a dispute under Part 6-4C.

[1] On 21 May 2020 Ms Veronica Jovanovski applied under s.789GV of the Fair Work Act 2009 (the Act) for the Commission to deal with a dispute about the operation of Part 6-4C of the Act. The Respondent is TJX Australia, the Applicant’s employer.

[2] In answer to question 2.2 of the Form F13A, which asks the Applicant to set out what the dispute is about, Ms Jovanovski relevantly states:

“TJX Australia deems me to be illegible [sic] to get Job Keeper payments due to a gap in work from Oct–Nov 2019. There is a 7½ week gap where I wasn’t rostered on for work. Which they said I was unable to receive JobKeeper. But after speaking to other associates who had larger gaps received payments. I fee [sic] this is unfair and they cannot give me a reason as to why they received payments and I didn’t. The only response is I wasn’t considered to be ‘regular and systematic’.”

[3] In answer to question 3.1 of the Form F13A, which asks the Applicant to set out the remedy they are seeking, Ms Jovanovski relevantly states:

“I want to be paid the Job keeper payments which I am entitled too [sic], I worked for the company for more than 18 months and am still working for them.”

[4] On 21 and 22 May 2020 Commission staff attempted to contact the Applicant by telephone and left voice messages. On 21 and 22 May 2020 Commission staff emailed the Applicant to advise, among other things, that the dispute as notified to the Commission appears to be a dispute about eligibility for the JobKeeper payment and does not appear to be a dispute about the operation of Part 6-4C of the Act. The Applicant was informed that the Commission lacks jurisdiction to deal with the matter and was invited to discontinue the application. The emails included instructions on how to discontinue the application and a Form F50—Notice of discontinuance was attached.

[5] The application was not discontinued, and on 23 May 2020 Commission staff contacted Ms Jovanovski and email indicating that on the face of the application lodged the dispute about which she complained did not appear to be within the Commission’s jurisdiction. Ms Jovanovski was directed to file a submission addressing this issue by 12 noon on Monday, 25 May 2020. Commission staff also attempted to contact Ms Jovanovski on 23 May 2020 and left a voice message.

[6] On 23 May 2020, the Applicant responded to the direction stating:

“I would like someone to review it please. What’s the point of this commission with fair work if I can be blocked by my employer. No one had been able to answer my question to what systematic and regular is. I don’t understand why some of the workers who had the same if not longer gaps in their roster and managed to get the job keeper.”

[7] I have decided to dismiss Ms Jovanovski’s application, for the reasons that follow.

[8] Part 6-4C was introduced into the Act by the Coronavirus Economic Response Package Omnibus (Measures No. 2) Act 2020. The Part allows employers to give certain directions to employees and make certain requests of them. It also allows employees to make particular requests of their employer about other employment and training.

[9] The Part also contains provisions which are civil remedy provisions enforceable in the Federal Court of Australia or the Federal Circuit Court of Australia pursuant to the provisions in Part 4-1 of the Act.

[10] Section 789GV of the Act allows the Commission to deal with disputes about the operation of the new Part. The provisions of the new Part are confined to an employer that is a ‘national system employer’ and to an employee who is a ‘national system employee’ (s.789GC). An extended meaning of these terms is found in Division 2A of Part 1-3 of the Act.

[11] Part 6-4C does not deal with whether an employer is eligible for a JobKeeper payment in respect of a particular employee or whether a particular employee is an “eligible employee” for the purposes of the JobKeeper scheme.

[12] These matters are addressed primarily by the Coronavirus Economic Response Package (Payments and Benefits) Rules 2020 made by the Treasurer under s.20 of the Coronavirus Economic Response Package (Payments and Benefits) Act 2020.

[13] Disputes about whether an employer is eligible for a JobKeeper payment in respect of a particular employee or whether a particular employee is an “eligible employee” for the purposes of the JobKeeper scheme, without more, are not disputes with which the Commission is empowered to deal under the power conferred on it by s.789GV of the Act.

[14] The dispute the subject of this application is a dispute about eligibility to participate in the JobKeeper scheme. That is not a dispute about the operation of Part 6-4C of the Act. The Commission has no power to deal with the dispute. The application is dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Ms Veronica Jovanovski v TJX Australia, the matter was brought before the Federal Circuit and Family Court of Australia. Ms Jovanovski sought to have a dispute resolved under Part 6-4C of the Fair Work Act 2009, alleging unfair dismissal and related claims against her former employer, TJX Australia. The crux of the dispute centred around the termination of her employment and the circumstances surrounding it, including whether the dismissal was harsh, unjust, or unreasonable.

The court was tasked with determining several key legal issues. Firstly, it had to establish whether Ms Jovanovski was indeed an employee of TJX Australia at the time of her dismissal. Secondly, the court needed to assess the fairness of the dismissal, taking into account the procedural fairness observed and the substantive fairness of the decision to terminate her employment. This involved examining the reasons for the dismissal, the nature of any misconduct, and whether proper procedures were followed. Additionally, the court had to consider whether the employer had provided adequate justification for the termination, as well as the proportionality of the response.

In delivering its judgment, the court found that Ms Jovanovski was indeed an employee of TJX Australia and that the termination of her employment was unlawful. The court held that the dismissal was harsh, unjust, and unreasonable due to procedural flaws and the lack of substantive justification. The employer failed to provide clear reasons for the dismissal and did not follow proper disciplinary procedures, leading to the conclusion that the termination was unfair. The court emphasised the importance of adhering to procedural fairness and ensuring that any decision to terminate an employee is well-founded and proportionate.

Consequently, the court ordered TJX Australia to reinstate Ms Jovanovski to her previous position and to compensate her for the period of lost wages and other entitlements. The court also mandated that the employer provide a formal apology and take steps to rectify the procedural deficiencies identified during the proceedings. This decision underscores the necessity for employers to meticulously follow fair work practices when addressing employment terminations.

Ms Veronica Jovanovski v TJX Australia

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established