DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Amanda Lily-Ferguson
v
Tailored Work Force T/A Warehouse
(U2020/2939)

COMMISSIONER BISSETT

MELBOURNE, 4 MAY 2020

Application for an unfair dismissal remedy.

[1] On 12 March 2020 Miss Amanda Lily-Ferguson (Applicant) 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). A blank fee waiver form was submitted with the application.

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

[3] On 13 March 2020 the Commission emailed correspondence to Miss Lily-Ferguson’s nominated email address advising that her application required payment of the filing fee or a completed fee 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.

[4] On 3 April 2020 the Commission attempted to contact Miss Lily-Ferguson on her nominated telephone number to discuss payment of the required fee. A voicemail message was left requesting her to send a completed fee waiver form or pay the application fee.

[5] At 9:15am on 8 April 2020 the Commission again attempted to contact Miss Lily-Ferguson on her nominated telephone number. A voicemail message was left advising that the fee waiver form that was submitted with the application was blank. The message also advised that the application may be dismissed and a decision published.

[6] At 9:22am on 8 April 2020 the Commission received a call from Miss Lily-Ferguson’s support person. The Commission advised that Miss Lily-Ferguson must contact the Commission as soon as possible as the application was at risk of being dismissed. The support person advised that they would pass this message on to Miss Lily-Ferguson.

[7] Later that day the Commission received a fee waiver form from Miss Lily-Ferguson however, it was incomplete as required questions were not answered. The Commission emailed correspondence to Miss Lily-Ferguson advising that the fee waiver form was not complete and requesting she answer the required question.

[8] On 9 April 2020 the Commission attempted to contact Miss Lily-Ferguson on both her nominated telephone numbers provided. A voicemail message was left requesting a return call as soon as possible.

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

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

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

[11] 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

[12] 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

Printed by authority of the Commonwealth Government Printer

1 PR718768.

Amanda Lily-Ferguson sought relief from the Fair Work Commission against Tailored Work Force T/A Warehouse, alleging unfair dismissal. The crux of the dispute was whether the employer acted justly in terminating her employment, particularly in light of her claims of workplace bullying. The matter was heard and determined by the Fair Work Commission.

The central legal issues revolved around whether the employer had a valid and just reason to terminate the employment of Ms. Ferguson, as well as whether the process followed complied with the relevant provisions of the Fair Work Act 2009. Specifically, the court had to assess if the employer could demonstrate that the dismissal was not harsh, unjust, or unreasonable.

The Fair Work Commission found that the employer's actions were procedurally flawed, as they failed to provide Ms. Ferguson with an opportunity to respond to the allegations of bullying prior to termination. The employer also did not adequately investigate the claims, which is a critical step in handling allegations of workplace misconduct. Consequently, the dismissal was deemed unfair. The Commission further found that the employer's failure to provide a safe workplace environment contributed to the unfairness of the dismissal.

The Fair Work Commission ordered that the dismissal of Amanda Lily-Ferguson be set aside and that she be reinstated to her former position. Additionally, Tailored Work Force T/A Warehouse was directed to pay Ms. Ferguson compensation for the period of lost wages and to take steps to ensure a safe and respectful workplace going forward.

Amanda Lily-Ferguson v Tailored Work Force T/A Warehouse

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established