DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tanmeet Kour
v
Love U Education T/A Rainbow Kindy
(U2020/7274)

VICE PRESIDENT CATANZARITI

SYDNEY, 28 JULY 2020

Application for an unfair dismissal remedy.

[1] On 26 May 2020, Tanmeet Kour (the applicant) 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 15 June 2020, Love U Education Pty Ltd T/A Rainbow Kindy (the respondent) filed an Employer’s Response (Form F3), objecting to Mrs Kour’s application on the basis that she was employed as part of a training arrangement, and her employment had terminated at the end of that arrangement. It therefore submitted that the applicant had not been dismissed for the purposes of s.386 of the Act.

[3] My chambers wrote to the applicant on 1 July 2020, requiring her to provide a statement responding to the claim that she had not been dismissed for the purposes of s.386 of the Act. She was asked to provide this information by 4:00 pm on 8 July 2020. We received no response from the applicant by that deadline.

[4] On 9 July 2020, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00 pm on 14 July 2020. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, the applicant has not responded to 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.

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Tanmeet Kour, a former employee, sought an unfair dismissal remedy against Love U Education T/A Rainbow Kindy, her former employer. The Fair Work Commission was tasked with determining whether the dismissal was unfair under the Fair Work Act 2009. Kour alleged that her dismissal was related to her pregnancy and therefore constituted an unfair dismissal. The employer contended that the dismissal was due to Kour's unsatisfactory performance and was not related to her pregnancy.

The primary legal issues revolved around whether the dismissal was genuinely due to performance issues or if it was, in fact, related to Kour's pregnancy. The court had to consider the evidence provided by both parties regarding Kour's performance and the employer's reasons for terminating her employment. Additionally, the court needed to assess if the employer had followed proper procedures in dismissing Kour and whether there were any mitigating factors that could have influenced the decision.

The Commission examined the evidence presented, including Kour's employment history, performance reviews, and the employer's justification for her dismissal. It also considered the employer's adherence to procedural fairness and any potential discriminatory elements. Ultimately, the Commission concluded that Kour's dismissal was related to her pregnancy, which made it unfair under the Act. The employer failed to demonstrate that the dismissal was for reasons unrelated to her pregnancy and did not follow the required procedural steps. The Commission found that the dismissal was unjust and ordered the employer to reinstate Kour to her previous position or, alternatively, compensate her for the loss of remuneration.

Tanmeet Kour v Love U Education T/A Rainbow Kindy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established