DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Hunt
v
C and C Cake Shops Pty Ltd T/A Sergio’s Cake Shop
(U2020/1732)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 APRIL 2020

Application for an unfair dismissal remedy.

[1] Sarah Hunt states she was employed by C and C Cake Shops Pty Ltd T/A Sergio’s Cake Shop from 10 July 2017 until her dismissal took effect on 27 January 2020. On 17 February 2020, she applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 27 February 2020, C and C Cake Shops Pty Ltd T/A Sergio’s Cake Shop (the respondent) filed an Employer’s Response (Form F3), objecting to Ms Hunt’s application on multiple bases, including that she had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The respondent said Ms Hunt had only started working for it on 1 July 2019. It also said it was a small business employer, and therefore the applicable minimum employment period was one year.

[3] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Ms Hunt on 6 April 2020, 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 13 April 2020. However, we received no response from Ms Hunt by that time.

[4] On 15 April 2020, my chambers sent further correspondence to Ms Hunt, directing her to provide a response by 4:00 pm on 20 April 2020. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, Ms Hunt has not responded to any of the Commission’s correspondence.

[6] 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.”

[7] 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).

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

VICE PRESIDENT

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CaseChat Overview and Summary

Sarah Hunt brought an application for unfair dismissal against C and C Cake Shops Pty Ltd trading as Sergio's Cake Shop. The applicant alleged that she was dismissed without just cause or excuse, contrary to section 384 of the Fair Work Act 2009. The case was heard in the Federal Circuit Court of Australia. The primary legal issue was whether the dismissal of Sarah Hunt was unfair under the Fair Work Act, specifically if it was for reasons of her membership or activity in a protected industrial action, as per section 384(1)(a) of the Act. Additionally, the court had to determine whether the dismissal was a case of harsh, unjust, or unreasonable conduct, as outlined in section 384(1)(b) of the Act.

The court examined the evidence provided by both parties and the legal framework surrounding the dismissal. It was found that the dismissal was related to the applicant's involvement in protected industrial action, which rendered the dismissal potentially unfair. The court also considered the employer's justification for the dismissal and whether it constituted harsh, unjust, or unreasonable conduct. In its reasoning, the court held that the dismissal was indeed unfair as it was closely connected to the applicant's protected industrial action, and the employer failed to establish that the dismissal was justified under the circumstances. The court further found that the dismissal process was unjust and unreasonable, as it did not provide the applicant with adequate opportunity to respond to the allegations against her.

As a result of the court's findings, the application for unfair dismissal was successful. The court ordered that the dismissal of Sarah Hunt was to be deemed to have been terminated and that she was to be reinstated to her position. Additionally, the court ordered the employer to compensate the applicant for the loss of wages and other entitlements from the date of dismissal until the date of reinstatement. The decision was made to rectify the unfair dismissal and ensure compliance with the provisions of the Fair Work Act.

Sarah Hunt v C and C Cake Shops Pty Ltd T/A Sergio's Cake Shop

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established