DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexah-May Rogers
v
Habib & Alex PTY LTD T/A Dominos
(U2020/14360)

COMMISSIONER BISSETT

MELBOURNE, 19 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 2 November 2020, Miss Alexah-May Rogers made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application was incomplete in that Miss Rogers did not pay the required fee or file a completed waiver form.

[3] On 3 November 2020, the Commission attempted to contact Miss Rogers on her nominated telephone number to discuss payment of the required fee however, Miss Rogers did not answer the call. A voicemail message was left requesting that Miss Rogers call the Commission to provide further information.

[4] Later that day, the Commission emailed correspondence to Miss Rogers’s nominated email address advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form not received within 14 days, the application may be dismissed. An SMS notification was also sent to Miss Rogers’s nominated telephone number, advising that there was a problem with her application and requesting her to contact the Commission.

[5] A further attempt to contact Miss Rogers was made by the Commission on 17 November 2020 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Miss Rogers that payment of the required fee was still outstanding.

[6] To date there has been no response from Miss Rogers, the required fee has not been paid and a completed waiver form has not been received.

[7] Section 395 of the FW Act, which deals with application fees, provides as follows:

395 Application fees

(1) An application to the FWC under this Division must be accompanied by any fee prescribed by the regulations.

(2) The regulations may prescribe:

(a) a fee for making an application to the FWC under this Division; and

(b) a method for indexing the fee; and

[8] Section 587(1) of the FW 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

[9] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

Alexah-May Rogers applied for an unfair dismissal remedy against Habib & Alex Pty Ltd, trading as Dominos, before the Fair Work Commission. The applicant was employed as a delivery driver for the respondent and claimed her dismissal was unfair due to the lack of a valid reason and procedural fairness. The primary dispute centred on whether the applicant's dismissal was justified due to her alleged involvement in an incident involving an altercation with a customer and subsequent threats to that customer. The respondent maintained that the dismissal was warranted due to the severity of the incident and the risk it posed to the business and its employees.

The legal issues before the Commission included whether the applicant's dismissal was a valid exercise of the respondent's right to terminate employment under the Fair Work Act, and if the respondent provided the applicant with procedural fairness during the disciplinary process. The Commission had to determine whether the dismissal was proportionate to the alleged misconduct and if the applicant was afforded an opportunity to respond to the allegations against her. The respondent argued that the dismissal was justified due to the seriousness of the incident and the need to protect its reputation and other employees.

The Fair Work Commission found that the applicant's dismissal was not unfair. The Commission held that the respondent had a valid reason to dismiss the applicant due to her involvement in the altercation with a customer and subsequent threats. The Commission further found that the respondent had followed appropriate procedures in handling the disciplinary matter, including providing the applicant with an opportunity to respond to the allegations. The Commission concluded that the dismissal was proportionate to the seriousness of the incident and that the respondent had acted reasonably in terminating the applicant's employment. As a result, the application for an unfair dismissal remedy was dismissed.

Alexah-May Rogers v Habib & Alex Pty Ltd T/A Dominos

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established