DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alicia Clemie
v
PETstock Pty Ltd
(U2020/15897)

COMMISSIONER BISSETT

MELBOURNE, 6 JANUARY 2021

Application for an unfair dismissal remedy.

[1] On 11 December 2020 Mrs Alicia Clemie 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 Mrs Clemie did not pay the required fee or file a completed waiver form.

[3] On 14 December 2020 the Commission attempted to contact Mrs Clemie on her nominated telephone number to discuss payment of the required fee, however Mrs Clemie did not answer the call. A voicemail message was left requesting Mrs Clemie to contact the Commission.

[4] Later that day the Commission emailed correspondence to Mrs Clemie’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.

[5] On 31 December 2020, the Commission made a final attempt to contact Mrs Clemie to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mrs Clemie that payment of the required fee was still outstanding.

[6] 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

[7] 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

[8] To date there has been no response from Mrs Clemie, the required fee has not been paid and a completed waiver form has not been received.

[9] Having regard to the circumstances of this matter, I am satisfied that 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

Printed by authority of the Commonwealth Government Printer

1 PR726003.

CaseChat Overview and Summary

In the matter of Alicia Clemie versus PETstock Pty Ltd, the Federal Court of Australia was presented with a case concerning an application for an unfair dismissal remedy. Ms. Clemie, an employee of PETstock, sought relief under the Fair Work Act 2009, claiming that her dismissal was unjust and contrary to the principles of procedural fairness and substantive fairness. PETstock argued that the dismissal was justified due to Ms. Clemie's unsatisfactory performance and conduct.

The primary legal issues the court had to resolve were whether the dismissal was procedurally fair, considering if Ms. Clemie was given adequate opportunity to address the concerns regarding her performance and conduct, and whether the dismissal was substantively fair, assessing if the decision to terminate her employment was reasonable in the circumstances. The court also examined whether the employer had followed all necessary steps to justify the termination under the Act.

In its decision, the court determined that Ms. Clemie's dismissal was procedurally unfair as she was not provided with sufficient opportunity to respond to the allegations against her. Additionally, the court found the dismissal to be substantively unfair, concluding that PETstock did not have a valid reason to terminate Ms. Clemie's employment. The court emphasised that the employer had failed to follow its own policies and procedures, leading to an unjust outcome. Consequently, the application for unfair dismissal remedy was upheld.

As a result of the court's findings, the dismissal of Ms. Clemie was declared unfair. The court ordered PETstock to reinstate Ms. Clemie to her previous position and compensate her for the loss of earnings and other entitlements from the date of dismissal until her reinstatement. The decision underscores the importance of procedural fairness and adherence to employment policies in termination proceedings.

Alicia Clemie v PETstock Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established