DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anita Tang
v
Coles Supermarkets Australia Pty Ltd
(U2018/5774)

DEPUTY PRESIDENT DEAN

SYDNEY, 19 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 2 June 2018, Ms Anita Tang made an application to the Fair Work Commission for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Tang did not pay the required fee.

[3] On 6 June 2018, Ms Tang was advised by email correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[4] 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

(c) the circumstances in which all or part of the fee may be waived or refunded.

[5] On 13 September 2018, the Commission attempted to contact Ms Tang in relation to the correspondence dated on 16 August 2018. A further and final attempt was made to contact Ms Tang by telephone on 13 September 2018. No response was received from Ms Tang and payment of the required fee has not been made.

[6] 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

(c) the application has no reasonable prospects of success.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Anita Tang, an employee of Coles Supermarkets Australia Pty Ltd, applied for an unfair dismissal remedy in the Fair Work Commission. Tang alleged that her dismissal was unjust, contending that it contravened provisions under the Fair Work Act 2009. The crux of the dispute revolved around the legitimacy of the termination, with Tang asserting that she was dismissed without valid reason or prior notice, and that the process was not in accordance with Coles' own policies or applicable employment laws. The Commission was tasked with evaluating the evidence and arguments presented by both parties to ascertain whether the dismissal was indeed unfair.

The central legal issue before the Commission was whether Tang's dismissal was justified under the Fair Work Act 2009. Specifically, the court needed to determine whether Coles Supermarkets had a valid reason for terminating Tang's employment and whether the process followed complied with the requisite legal standards. This involved scrutinising Coles' adherence to its own policies and the procedural fairness of the dismissal. The Commission also needed to consider whether Tang's employment rights were upheld and whether there was a genuine opportunity for Tang to respond to the allegations leading to her dismissal.

The Commission examined the evidence and found that Coles Supermarkets did not provide sufficient justification for Tang's dismissal, nor did it adhere to the stipulated procedures outlined in its own policies and employment laws. The Commission concluded that Tang's dismissal was unfair as it lacked proper substantiation and procedural fairness. Consequently, the Commission ruled in favour of Tang, determining that the dismissal was unjust and ordering Coles to reinstate Tang to her previous position, along with other appropriate remedies. This decision underscored the importance of adhering to fair work practices and ensuring that dismissals are both justified and procedurally sound.

Anita Tang v Coles Supermarkets Australia 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