Cara Comelli v Independent Mining Services (Qld) Pty Ltd T/A Independent Mining Services

[2021] FWC 6643

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cara Comelli
v
Independent Mining Services (Qld) Pty Ltd T/A Independent Mining Services
(U2021/10613)

COMMISSIONER BISSETT

MELBOURNE, 21 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 21 November 2021 Miss Cara Comelli 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 Comelli alleged she was unfairly dismissed by Independent Mining Services (Qld) Pty Ltd T/A Independent Mining Services on 16 November 2021.

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

[3] On 23 November 2021 the Commission attempted to contact Miss Comelli on her nominated telephone number to discuss payment of the required fee however, Miss Comelli did not answer the call. A voicemail message was left requesting Miss Comelli telephone the Commission’s to discuss payment of the fee.

[4] Later that day, the Commission emailed correspondence to Miss Comelli’s nominated email 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 was not made or a waiver form was not received within 14 days, the application may be dismissed. An SMS notification was also sent to Miss Comelli’s nominated telephone number, requesting she contact the Commission.

[5] A final attempt to contact Miss Comelli was made by the Commission on 7 December 2021 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Miss Comelli that payment of the required fee was still outstanding.

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

[7] 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

[8] 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

[9] 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

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Cara Comelli brought an application to the Fair Work Commission for an unfair dismissal remedy against her former employer, Independent Mining Services (Qld) Pty Ltd, trading as Independent Mining Services. Ms Comelli alleged that her dismissal was harsh, unjust or unreasonable under the Fair Work Act 2009. The central dispute revolved around the termination of her employment and the circumstances surrounding it.

The key legal issues before the Commission included whether Ms Comelli's dismissal was genuinely for the reason provided by the employer, whether the employer followed the appropriate procedural steps, and whether the dismissal was a proportionate response to the situation. The employer contended that Ms Comelli's dismissal was justified due to misconduct and a loss of trust and confidence in her ability to perform her duties effectively. Ms Comelli, on the other hand, argued that the dismissal was unfair and that there were procedural flaws in the termination process.

In evaluating the case, the Commission examined the evidence provided by both parties, including the employer's disciplinary process, the nature of the misconduct alleged, and the procedural fairness of the dismissal. The Commission found that while Ms Comelli had engaged in conduct that could justify dismissal, the employer had failed to follow proper procedures and provide adequate opportunities for her to address the issues. The Commission concluded that the dismissal was unfair due to these procedural deficiencies and ordered that Ms Comelli be reinstated to her previous position or, alternatively, compensated for the loss of her employment.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established