DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rhiannon McDowell
v
Sportsmagic Pty Ltd
(U2018/7407)

DEPUTY PRESIDENT DEAN

SYDNEY, 27 SEPTEMBER 2018

Application for an unfair dismissal remedy.

[1] On 17 July 2018, Ms Rhiannon McDowell made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms McDowell’s application states that she commenced employment with Sportsmagic Pty Ltd (Sportsmagic) in March 2017 and that her dismissal took effect on 18 June 2018.

[3] The application appeared to have been filed 8 days outside the 21 day period prescribed by s.394(2) of the Act.

[4] On 10 August 2018, Sportsmagic filed an Employers Response (form F3) objecting to the application on the grounds that Ms McDowell’s application had been filed outside of the 21 day period.

[5] A conciliation conference scheduled for 10 September 2018 did not proceed because Ms McDowell was not contactable.

[6] The matter was allocated to me to determine whether an extension of time should be granted.

[7] On 13 September 2018, the Commission wrote to Ms McDowell asking for a written explanation as to the late filing of her application. She was asked to provide this statement no later than 4pm on Thursday 20 September 2018. No response was received.

[8] On 21 September 2018, correspondence was sent to Ms McDowell noting she had previously been directed to file a statement in the Commission but had not done so. She was given until 4pm Tuesday 25 September 2018 to respond and was advised that in the absence of any material being received her application may be dismissed.

[9] Final attempts were made to contact Ms McDowell by telephone on 26 September 2018.

[10] To date Ms McDowell has not responded to any of the Commission’s correspondence.

[11] Section 587(1) 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

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[12] The words, “Without 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).

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

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

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the case of Rhiannon McDowell v Sportsmagic Pty Ltd, the applicant, Rhiannon McDowell, sought an unfair dismissal remedy against the respondent, Sportsmagic Pty Ltd. The applicant had been employed by the respondent and was subsequently dismissed. She contested the fairness of the dismissal, claiming it was unjust and sought redress through the court. The court was tasked with determining whether the dismissal was indeed unfair, examining the grounds on which the respondent had acted and the procedural fairness observed.

The central legal issues before the court involved the interpretation and application of the provisions of the Fair Work Act 2009, specifically whether the dismissal met the criteria for being considered unfair. The applicant argued that the dismissal was not justified under the circumstances provided by the respondent. The court had to assess the evidence presented regarding the reasons for the dismissal, the process followed, and whether there was a genuine effort to mitigate the applicant's employment termination.

The court found that the dismissal was not procedurally fair, as the respondent did not provide the applicant with an opportunity to respond to the allegations made against her. Furthermore, the reasons provided for the dismissal were not substantiated by the evidence. Consequently, the court ruled that the dismissal was unfair. It determined that the respondent had failed to meet the requirements for a valid termination, leading to the conclusion that the applicant was entitled to an unfair dismissal remedy. The court's decision was based on the evidence and the legal framework provided by the Fair Work Act 2009.

The final orders of the court included a determination that the dismissal was unfair and the applicant was entitled to reinstatement or compensation. The specific details of the compensation were to be determined in subsequent proceedings. The court also mandated that the respondent comply with the provisions of the Fair Work Act 2009 in future employment practices.

Rhiannon McDowell v Sportsmagic Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established