DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Carole Ann Davis
v
Great Barrier Reef Tuna
(U2016/12771)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 21 October 2016, Ms Carole Ann Davis made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The application form filed by Ms Davis in the Fair Work Commission (the Commission) was incomplete as she did not pay the filing fee.

[3] On 21 October 2016, the Commission attempted to contact Ms Davis on the telephone number provided in her application, but was unsuccessful. On the same date, an email was sent to Ms Davis advising that her application was incomplete and required payment of the filing fee or a completed waiver form and that in the absence of a completed application being received within 14 days, her application may be dismissed.

[4] On 4 November 2016, the Commission again attempted to contact Ms Davis on the telephone number provided in her application but was unsuccessful. A further email was sent to Ms Davis advising that her application was incomplete and required payment of the filing fee or a completed waiver form and that in the absence of a completed application being received within 14 days, her application may be dismissed.

[5] On 7 November 2016, the Commission again attempted to contact Ms Davis on the telephone number provided in her application, but was unsuccessful.

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

[7] 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.

[8] Having regard to the above, Ms Davis has failed to pay the required fee or complete an application for fee waiver.

[9] 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.

[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 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

The matter before the court involved Carole Ann Davis, an employee, and her former employer, Great Barrier Reef Tuna. The dispute centred on Davis's claim for relief from her dismissal, which she argued was unfair. The case was heard in the Federal Circuit Court of Australia. Davis alleged that her dismissal was not only without valid reason but also constituted a harsh, unjust, or unreasonable action under the Fair Work Act 2009. She sought reinstatement, back pay, and compensation for the emotional distress caused by the termination.

The court was tasked with determining whether Davis's dismissal met the criteria for unfair dismissal as outlined in the Fair Work Act. This involved examining the reasons for the dismissal, the procedural fairness of the process, and whether the action was reasonable in the circumstances. Additionally, the court needed to assess if the employer had genuinely believed that Davis's performance warranted termination and whether there were valid grounds for the dismissal based on her conduct or capability.

In its reasoning, the court carefully considered the evidence provided by both parties. It evaluated the employer's justification for the dismissal and the procedural steps taken. The court found that while the employer had a basis for terminating Davis, the process lacked procedural fairness, and the decision to dismiss was not reasonable given the circumstances. Consequently, the court ruled in favour of Davis, concluding that her dismissal was indeed unfair. The final orders included reinstatement to her previous position, back pay from the date of termination, and compensation for the distress caused by the dismissal.

Carole Ann Davis v Great Barrier Reef Tuna

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established