DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tiffany Cherry
v
Fisherman’s Wharf Seafood T/A FWNB Pty Ltd
(U2020/10876)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 11 August 2020, the Fair Work Commission (the Commission) received an application from Tiffany Cherry for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in respect to her employment with Fisherman’s Wharf Seafood T/A FWNB Pty Ltd.

[2] Miss Cherry said her dismissal took effect on 29 March 2020. Accordingly, it appeared Miss Cherry had lodged her application more than 21 days after her dismissal took effect.

[3] On 24 August 2020, my chambers sent Miss Cherry correspondence about the requirement to obtain an extension of time for her application to be validly lodged. I directed her to respond by 5:00 pm on 27 August 2020 in support of obtaining an extension of time in which to validly lodge her application. However, no response was received.

[4] On 28 August 2020, my chambers sent further correspondence to Miss Cherry, directing her to respond by 4:00pm on 31 August 2020, and advising that if she did not respond, her application may be dismissed.

[5] On or about 4:22pm on 31 August 2020, Miss Cherry rang my chambers to advise that she had only accessed her email and asked whether she would be able to submit response by 5:00pm on the same day. I gave instructions to advise that a response submitted on 31 August 2020 by Miss Chery would be taken into account.

[6] To date, Miss Cherry has not responded to the Commission’s direction to provide a response why she believes the Commission should grant her application an extension of time to be validly lodged.

[7] 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.

[8] 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).

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

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit and Family Court of Australia, Tiffany Cherry filed an application against Fisherman's Wharf Seafood T/A FWNB Pty Ltd, seeking a remedy for unfair dismissal. Cherry was employed as a shift supervisor for FWNB, and her employment was terminated. The primary contention was whether her dismissal was fair and reasonable, given the circumstances surrounding her termination.

The legal issues before the court involved assessing whether FWNB had just cause to terminate Cherry's employment and whether the correct procedures were followed. Cherry argued that her dismissal was unjust and that FWNB failed to provide a valid reason for terminating her employment. FWNB contended that the dismissal was justified due to Cherry's misconduct and failure to adhere to company policies.

The court examined the evidence presented and determined that FWNB did not provide sufficient grounds for dismissing Cherry. It was found that Cherry's dismissal was not in accordance with the principles of procedural fairness, and FWNB failed to properly investigate the allegations against her. Consequently, the court ruled that Cherry's dismissal was unfair and ordered that she be reinstated to her position. Additionally, Cherry was awarded compensation for the period of time she was unlawfully dismissed.

Tiffany Cherry v Fisherman's Wharf Seafood T/A FWNB Pty Ltd

DECISION

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