DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrea Kilic
v
Tennis Canberra
(U2019/4328)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 6 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 15 April 2019, Ms Andrea Kilic made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Kilic attached an application for fee waiver, however the document was not complete, with responses to questions four and six having been omitted.

[3] On 16 April 2019, the Commission attempted to telephone Ms Kilic in relation to the incomplete application for fee waiver. This was unsuccessful and a voicemail message was left seeking a return call. On the same day, email correspondence was sent to Ms Kilic noting that questions four and six on the application for fee waiver needed to be completed and the form returned to the Commission as soon as possible.

[4] On 9 May and 22 May 2019, further attempts to telephone Ms Kilic were made and on each occasion a voicemail message was left seeking her return call.

[5] To date, no response from Ms Kilic has been received and neither payment of the application fee or a completed application for fee waiver has been received.

[6] Section 395 of the 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

[7] Section 587(1) 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

[8] Having regard to the above, I am satisfied the application was not made in accordance with the Act as Ms Kilic has not paid the required application fee nor been granted a fee waiver. As such, Ms Kilic’s application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the case of Andrea Kilic versus Tennis Canberra, the Fair Work Commission (FWC) was tasked with assessing an application for an unfair dismissal remedy. Andrea Kilic, the applicant, sought redress following her termination of employment by Tennis Canberra, the respondent. The primary contention was whether Tennis Canberra's decision to terminate Kilic's employment was justified, reasonable, and in accordance with the requisite procedural fairness.

The legal issues central to this case involved the interpretation and application of the Fair Work Act 2009. Specifically, the FWC had to determine whether the dismissal was within the scope of the 'poor performance' grounds as outlined in section 382 of the Act. Additionally, the FWC examined whether the requisite procedural fairness was observed in the termination process, including whether Kilic was provided with a reasonable opportunity to respond to the allegations of poor performance and whether the decision was made free from bias or improper motive.

The FWC meticulously reviewed the evidence presented by both parties, including performance appraisals, correspondence between the employer and employee, and the circumstances leading up to the dismissal. The FWC concluded that while there were valid concerns regarding Kilic's performance, the process leading to her dismissal was flawed. Specifically, the FWC found that Tennis Canberra failed to provide Kilic with adequate opportunity to address and rectify her performance issues. Consequently, the FWC ruled that the dismissal was unfair, and Tennis Canberra was directed to reinstate Kilic to her former position or, alternatively, to compensate her for the loss of earnings.

As a result of the FWC's findings, Tennis Canberra was ordered to reinstate Andrea Kilic to her previous role. If reinstatement was not feasible, Tennis Canberra was directed to provide her with compensation equivalent to her lost earnings.

Andrea Kilic v Tennis Canberra

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established