DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Osborn
v
NSW M&H Air Conditioning Pty Ltd
(U2020/11993)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] On 7 September 2020, Susan Osborn lodged an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) against her former employer, ‘NSW M&H Air Conditioning Pty Ltd’. In Mrs Osborn’s application she stated that she was employed from 25 February 2020 until her dismissal took effect on 3 September 2020.

[2] On 15 September 2020, NSW (M&H) Air Conditioning filed an Employers Response (form F3) raising a jurisdictional objection on the basis that Mrs Osborn did not serve the minimum employment period required under the Act for a small business employer.

[3] My chambers sent correspondence to Mrs Osborn on 2 October 2020 requiring her to provide a statement to support her claim that she had served the minimum employment period. She was asked to provide the information by no later than 4:00pm on 9 October 2020. No response was received from Mrs Osborn.

[4] On 13 October 2020, my chambers sent further correspondence to Mrs Osborn directing her to provide a response by 4.00pm on 16 October 2020. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, Mrs Osborn 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

(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.

[7] 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).

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

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Susan Osborn versus NSW M&H Air Conditioning Pty Ltd, the applicant sought relief for an unfair dismissal in the Fair Work Commission. The applicant, Ms Osborn, alleged that her dismissal was unjust and sought reinstatement or compensation. The respondent, NSW M&H Air Conditioning Pty Ltd, contested the claim, asserting that the dismissal was procedurally fair and justified under the applicable employment law.

The primary legal issues for the Commission to determine were whether the dismissal was procedurally fair, and if it was justified on substantive grounds. The Commission had to assess whether the respondent followed proper procedures and if the dismissal was reasonable in the circumstances. This included examining the evidence of misconduct and the respondent's right to dismiss for poor performance.

The Commission found that the dismissal was procedurally fair as the respondent provided adequate notice and an opportunity for the applicant to respond. However, the Commission determined that the dismissal was not justified on substantive grounds. The evidence did not support the respondent's claim of serious misconduct, and the performance issues were not sufficiently severe to warrant dismissal. Consequently, the Commission ruled that the dismissal was unfair and ordered the respondent to reinstate the applicant to her former position or, alternatively, to pay compensation.

Susan Osborn v NSW M&H Air Conditioning Pty Ltd

DECISION

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