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January 2020

The Fair Work Commission can take steps beyond hearing an unfair dismissal claim

The Fair Work Commission can take steps beyond hearing an unfair dismissal claim

Ayton v You Come Pty Ltd t/a Foodworks Ashmont (2019)

The Case

You Come Pty Ltd employed Ms Ayton as a long-term casual employee at the Foodworks Ashmont supermarket. Ms Ayton was dismissed from her employment by a text message that stated: “I decide [sic] to give job [sic] to someone else but I will let u [sic] know if I need to to [sic] work, sorry for that”.

Ms Ayton filed an unfair dismissal claim with the Fair Work Commission (FWC) and also claimed she had been dismissed because she was not Chinese. You Come Pty Ltd filed a response stating it was a small business and that it had complied with the Small Business Fair Dismissal Code (Code). You Come Pty Ltd also claimed that Ms Ayton had been dismissed for misconduct and unexplained absences. However, no warnings had been issued.

The Verdict

The FWC found that You Come Pty Ltd had not complied with the Code and Ms Ayton had not engaged in misconduct. In addition, the FWC exercised its power under s 590 of the Fair Work Act 2009 (Cth) (FW Act) (which allows the FWC to inform itself in relation to any matter, in any manner, that it considers appropriate) to conduct inquiries into the allegation that Ms Ayton had been dismissed because she was not Chinese.

Making this inquiry, the FWC found that You Come Pty Ltd had posted job advertisements stating it preferred Asian employees. As such, the FWC found that in addition to the dismissal being unfair, it was likely in breach of anti-discrimination laws.

You Come Pty Ltd was ordered to pay $11,803.01 in compensation and the matter was referred to the General Manager of the FWC for consideration of whether to refer it on for investigation of potential breaches of discrimination laws.

The Lessons

This case demonstrates that there is a need for a valid reason for dismissal and for a procedurally fair process to be followed. It also shows that the FWC has the ability to:

  • inform itself where information is lacking; and
  • pass on matters to its General Manager for consideration for referral for further investigation.
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