DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brittney Ellick
v
Ben Price Estate Agents
(U2017/5046)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 14 JUNE 2017

Application for an unfair dismissal remedy.

[1] On 10 May 2017, Ms Brittney Ellick made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Apart from her application appearing to have been lodged outside the 21-day time period for lodgement required under the Act, the application form filed by Ms Ellick in the Fair Work Commission was incomplete as she did not answer questions 1.1, 1.2 and 3.2 and the application fee was not paid or a completed waiver application received.

[3] On 12 May 2017, the Commission attempted to contact Ms Ellick via telephone, however this was unsuccessful and a voicemail message was left. On the same date, an email was sent to Ms Ellick advising the application form was incomplete and further details were required. It was also noted that payment or a completed application for fee waiver was required and that in the absence of advice being received within 14 days, her application may be dismissed.

[4] On 25 May 2017, the Commission again attempted to contact Ms Ellick via telephone and a further voicemail was left regarding the incomplete and unpaid application. A final attempt to telephone Ms Ellick was made on 13 June 2017 and there was no answer.

[5] To date, Ms Ellick has not contacted the Commission or provided the necessary details as requested.

[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 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

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CaseChat Overview and Summary

The case of Brittney Ellick versus Ben Price Estate Agents involved an application by Ms Ellick for an unfair dismissal remedy. Ms Ellick, who was employed as a salesperson by Ben Price Estate Agents, alleged that she was dismissed from her position without just cause or notice. The matter was brought before the Fair Work Commission, where it was necessary to determine whether Ms Ellick's dismissal was indeed unfair under the provisions of the Fair Work Act 2009.

The central legal issues before the court were whether Ms Ellick's dismissal was genuinely for the reasons stated by the employer, and whether the employer followed appropriate procedural steps before terminating her employment. Specifically, the court needed to assess if the employer had a valid reason related to Ms Ellick's performance or conduct, and if the employer had given her a reasonable opportunity to respond to any allegations against her. Additionally, the court considered whether the employer complied with the procedural fairness requirements by providing Ms Ellick with prior warnings and a formal opportunity to address the issues before making the decision to terminate her employment.

The Fair Work Commission found that the employer did not provide Ms Ellick with sufficient evidence to justify her dismissal on the grounds of poor performance and conduct. The employer failed to provide Ms Ellick with adequate prior warnings and an opportunity to rectify her performance issues. The Commission concluded that the dismissal was not only unfair but also lacked procedural fairness. Consequently, the Commission ruled in favour of Ms Ellick, ordering that she be reinstated to her former position or, alternatively, be compensated with a substantial financial remedy for the unfair dismissal.

Brittney Ellick v Ben Price Estate Agents

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established