Bonnie Davey v Weac T/A Tandana Mt Waverley Adolescence Emergency Centre

[2013] FWC 8858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bonnie Davey
v
WEAC T/A Tandana Mt Waverley Adolescence Emergency Centre
(U2013/10428)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 9 June 2013, Ms Bonnie Davey made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

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

[3] On 12 June 2013, Ms Davey was advised by email correspondence that her application required payment of the ($65.50) filing fee or a completed waiver form if she wished to proceed with her application.

[4] Section 395, 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 5 July 2013 and 17 July 2013, the Fair Work Commission (the Commission) contacted Ms Davey in relation to the correspondence dated 12 June 2013. On 9 August 2013 the Commission advised Ms Davey, by email correspondence, to provide payment within seven days or the application may be dismissed. No response was received from Ms Davey 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 that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Bonnie Davey, sought relief from an unfair dismissal from her employment with the respondent, Weac T/A Tandana Mt Waverley Adolescence Emergency Centre. The Federal Circuit Court was tasked with determining whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009. The application was brought forward to address the procedural and substantive fairness of the dismissal process.

The primary legal issue before the court was whether the dismissal was justified under the provisions of the Fair Work Act. The applicant argued that the dismissal process lacked procedural fairness as she was not provided with an adequate opportunity to respond to the allegations against her. Furthermore, the applicant contended that the dismissal was unjust in the circumstances, as there was no clear evidence to support the allegations of misconduct. The respondent, on the other hand, maintained that the dismissal was justified based on the evidence of misconduct and that the procedural fairness was adequately observed.

In delivering the judgment, the court found that the dismissal was indeed harsh, unjust, or unreasonable. The court held that the applicant was not given a reasonable opportunity to respond to the allegations, which constituted a breach of procedural fairness. Additionally, the court determined that the evidence provided by the respondent was insufficient to substantiate the allegations of misconduct. Consequently, the court ruled in favour of the applicant, finding that the dismissal was unjust and ordering the respondent to reinstate the applicant to her former position or, alternatively, to pay compensation in lieu of reinstatement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established