DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bianca Tan
v
COSMAX Prestige Brands Pty Ltd
(U2021/5034)

COMMISSIONER BISSETT

MELBOURNE, 29 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 9 June 2021 Miss Bianca Tan (the 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). Miss Tan stated she had been unfairly dismissed by COSMAX Prestige Brands Pty Ltd (the Respondent) on 8 June 2019.

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

[3] On 10 June 2021 the Commission made two attempts to contact Miss Tan on her nominated telephone number to discuss payment of the required fee and to advise that the waiver application form that she had provided with her application was blank. However, Miss Tan did not answer either phone calls. No voicemail message was able to be left because an automated message advised “We're sorry, your call could not be completed at this time. Please hang up and try your call again later."

[4] Later that day, the Commission emailed correspondence to Miss Tan’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 is not made or a waiver form was not received within 14 days, the application may be dismissed.

[5] Two additional attempts to contact Miss Tan on her nominated telephone number were made by the Commission on 22 June 2021 to obtain payment or a completed waiver form. Miss Tan did not answer either phone calls. No voicemail message was able to be left because an automated message advised “We're sorry, your call could not be completed at this time. Please hang up and try your call again later."

[6] That same day a further attempt to contact Miss Tan was made via email. Correspondence was sent to Miss Tan’s nominated email address advising that her that the Commission had made multiple attempts to contact her via her nominated telephone number which had been unsuccessful. That correspondence advised that the 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 is not made or a waiver form was not received within 14 days, the application may be dismissed.

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

[8] 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

[9] 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

[10] 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 with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR731150.

Bianca Tan brought an application for an unfair dismissal remedy against Cosmax Prestige Brands Pty Ltd in the Fair Work Commission. Ms Tan alleged that her dismissal was harsh, unjust, or unreasonable, and sought reinstatement and compensation. Cosmax Prestige Brands Pty Ltd contended that the dismissal was justified under the provisions of the Fair Work Act 2009, arguing that Ms Tan was dismissed for poor performance and misconduct.

The primary legal issues the Commission had to address were whether Ms Tan's dismissal was within the scope of the 'no fault' dismissal provision and whether the employer had followed the necessary procedural steps prior to the termination. The Commission also examined whether the employer had acted reasonably in considering that dismissal was warranted given the circumstances. The Commission's task was to balance the employer's right to manage its business with the employee's right to procedural fairness and protection against unjust dismissal.

The Commission found that Cosmax Prestige Brands Pty Ltd had followed the appropriate procedural steps before dismissing Ms Tan. However, it determined that the decision to dismiss was not based on valid grounds, as the employer's performance management processes were flawed, and the evidence of misconduct was insufficient. Consequently, the Commission concluded that the dismissal was unfair and ordered reinstatement and compensation for Ms Tan. The Commission emphasised the importance of fair and transparent performance management practices and the necessity for employers to substantiate allegations of misconduct with clear and compelling evidence.

Bianca Tan v Cosmax Prestige Brands 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