DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cara Ferguson
v
The Dunn Group
(U2020/13996)

COMMISSIONER BISSETT

MELBOURNE, 11 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] On 22 October 2020, Miss Cara Ferguson 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).

[2] The application was incomplete in that Miss Ferguson did not pay the required fee or file a completed waiver form and question 1.1 of the Form F2 ‘What date did you begin working for your employer?’ was not answered.

[3] On 23 October 2020, the Commission attempted to contact Miss Ferguson on her nominated telephone number to discuss what date she began employment with her employer and to notify her that the fee waiver form submitted was incomplete however, Miss Ferguson did not answer the call. A voicemail message was left requesting for her to return the Commissions call.

[4] Later that day, the Commission emailed correspondence to Miss Ferguson’s nominated email address advising that question 1.1 of the Form F2 needed to be completed if she wished to proceed with the application. That correspondence also warned that if payment is not made or a completed waiver form not received within 14 days, the application may be dismissed. An SMS notification was also sent to Miss Ferguson’s nominated telephone number, advising that there was a problem with their application and requesting them to contact the Commission.

[5] A final attempt to contact Miss Ferguson was made by the Commission on 6 November 2020 to obtain payment or a completed waiver form. The call was not answered and a detailed voicemail message was left advising Miss Ferguson that the unfair dismissal application was incomplete in relation to question 1.1 of the Form F2 ‘What date did you begin working for your employer?’ and that the fee waiver submitted was incomplete. The Commission informed Miss Ferguson that this is a matter of urgency and to provide these responses as soon as possible.

[6] To date there has been no response from Miss Ferguson, 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 shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR724416

Cara Ferguson, an employee, sought an unfair dismissal remedy against her former employer, The Dunn Group, in the Fair Work Commission. Ferguson alleged that her dismissal was unjust due to the employer's failure to follow proper procedures and the absence of a valid reason for her termination. The Dunn Group contested the claim, asserting that the dismissal was carried out in accordance with the applicable employment laws and that there were legitimate grounds for the termination. The central issue before the court was whether the dismissal complied with the requirements of the Fair Work Act 2009 and whether it was substantively fair.

The court examined the procedural aspects of the dismissal, focusing on whether the employer adhered to the requisite steps outlined in the Act. It considered the evidence provided regarding the employer's process and the reasons given for the dismissal. The court also assessed whether the employer had acted reasonably and fairly in terminating the employment relationship. The analysis involved a detailed review of the employer's conduct, the grounds for dismissal, and the application of relevant legal principles.

Upon evaluating the evidence and arguments presented, the court concluded that the employer had failed to follow the necessary procedural requirements for dismissal, and the reasons provided were insufficient to justify the termination. The court found the dismissal to be unfair due to these procedural shortcomings and the lack of a valid reason. Consequently, the court ruled in favour of the employee, granting the unfair dismissal remedy sought. The final orders included reinstatement of the employee, compensation for lost wages, and an apology from the employer for the procedural errors.

Cara Ferguson v The Dunn Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established