DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rebecca Maddin
v
Vita Hotels T/A Rydges
(U2019/8394)

VICE PRESIDENT CATANZARITI

DARWIN, 4 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] Rebecca Maddin states she was employed by Vita Hotels T/A Rydges until her dismissal took effect on 25 July 2019.

[2] On 30 July 2019, Miss Maddin applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[3] On 7 August 2019, Vita Hotel Gladstone Pty Ltd T/A Rydges Hotel Gladstone (the Respondent) filed an Employer’s Response (Form F3), objecting to Miss Maddin’s application on the basis that she had not completed the minimum employment period to be eligible for an unfair dismissal remedy. Miss Maddin said she first started working for the Respondent on 17 September 2018. The Respondent said that Miss Maddin only started working for it on 13 February 2019.

[4] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Miss Maddin on 15 October 2019, requiring her to provide a statement to support her claim that she had completed the minimum employment period. She was asked to provide this information by 4:00 pm on 22 October 2019. However, we received no response from Miss Maddin by that time.

[5] On 23 October 2019, my chambers sent further correspondence to Miss Maddin, directing her to provide a response by 4:00 pm on 28 October 2019. She was advised that in the absence of a reply, her application may be dismissed.

[6] To date, Miss Maddin has not responded to any of the Commission’s correspondence.

[7] Section 587 of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[8] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[9] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[10] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Rebecca Maddin commenced proceedings in the Fair Work Commission against her former employer, Vita Hotels T/A Rydges, seeking relief under the Fair Work Act 2009 for an unfair dismissal. The dispute centred on Ms Maddin's termination of employment and the associated procedural fairness in the dismissal process. The matter was subsequently appealed to the Federal Circuit and Family Court of Australia, where the appeal was heard by his Honour Judge Mortimer.

The central legal issue before the court was whether the primary decision-maker erred in their assessment of the fairness of the dismissal. Specifically, the court was required to determine if the employer demonstrated that it had a valid reason related to the employee's capacity, conduct, or some other substantial reason for terminating Ms Maddin's employment, and whether the employer followed a just process in reaching the decision to dismiss. Additionally, the court examined whether the employer complied with the procedural fairness requirements by providing Ms Maddin with an opportunity to respond to the allegations against her.

In delivering his judgment, Judge Mortimer found that the employer had valid reasons for the dismissal related to Ms Maddin's conduct and capacity. However, the court held that the employer did not provide Ms Maddin with adequate procedural fairness in the dismissal process, as she was not given a reasonable opportunity to respond to the allegations. The court emphasised that a fair dismissal process includes the right of the employee to be informed of the case against them and to be given a fair opportunity to respond. Given this error, the court allowed the appeal and remitted the matter back to the Fair Work Commission for reassessment, considering the procedural fairness aspect of the dismissal.

The court did not make specific orders beyond the remittal of the matter to the Fair Work Commission for reassessment in light of the procedural fairness findings. The Commission is now required to determine if the dismissal was still fair, taking into account the employer's valid reasons for termination and the procedural fairness issues identified by the court.

Rebecca Maddin v Vita Hotels T/A Rydges

DECISION

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