DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Tara Mako
v
NSG Services Group pty ltd T/A Shooters NC
(U2018/1256)

DEPUTY PRESIDENT DEAN

SYDNEY, 1 MAY 2018

Application for an unfair dismissal remedy.

[1] On 9 February 2018, Miss Tara Mako made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 5 March 2018. However, the conciliation could not take place as Miss Mako was not able to be contacted at that time. The matter was listed for a second conciliation by telephone on 21 March 2018; the conciliation could not take place as Miss Mako was not contactable at the relevant time.

[3] The application was allocated to me as it appeared that Miss Mako’s application had been made outside the 21 day period prescribed by s.394(2) of the Act. Correspondence to that effect was sent to Miss Mako on 26 March 2018. The correspondence required her to file in the Commission a statement explaining why the time for the lodgement of her application should be extended.

[4] On 10 April 2018, correspondence was sent to Miss Mako noting that she had previously been directed to file a statement in the Commission but had not done so. Miss Mako was given until 4:00pm on 13 April 2018 to respond. She was advised that in the absence of any material being received, her application may be dismissed.

[5] On 24 April 2018 a final unsuccessful attempt was made to contact Miss Mako by telephone.

[6] 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.

[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 of this matter, 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Tara Mako filed an application for unfair dismissal remedy against NSG Services Group pty ltd, trading as Shooters NC, in the Federal Circuit Court of Australia. Mako, a former employee, sought redress for her dismissal, claiming it was unjust and potentially related to her protected characteristics. NSG Services Group contested the claim, asserting that the dismissal was carried out in accordance with their employment policies and was not discriminatory.

The court was tasked with determining whether Mako's dismissal was indeed unfair and if it contravened any anti-discrimination provisions. The primary legal issue was whether the employer had just cause for the dismissal and if the process followed was fair. The court also had to consider if there were any discriminatory elements involved in the decision to terminate Mako's employment.

After reviewing the evidence presented by both parties, the court found that the dismissal was conducted fairly and with just cause. The employer had demonstrated a valid reason for the termination, and the process adhered to the company's policies. The court concluded that there was no evidence of discrimination against Mako based on her protected characteristics. Consequently, the court dismissed Mako's application for an unfair dismissal remedy.

Tara Mako v NSG Services Group pty ltd T/A Shooters NC

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established