Cherie Di Labio v Bags & Baggage

[2014] FWC 7021

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Cherie Di Labio
v
Bags & Baggage
(C2014/5563)

COMMISSIONER WILLIAMS

PERTH, 7 OCTOBER 2014

Application to deal with contraventions involving dismissal - incomplete application.

[1] This decision concerns an application to deal with an alleged contravention of the general protections provisions made by Ms Cherie Michelle Di Labio (the applicant) under section 365 of the Fair Work Act 2009 (the Act).

[2] The application made was not fully completed. The applicant did not provide any details of the respondent employer nor had she identified which of the general protections the respondent was alleged to have contravened by taking adverse action against the applicant.

[3] A conference was convened on 23 September 2014 at which the applicant attended.

Following that conference the Commission wrote to the applicant relevantly in the following terms:

“With regards to the above application that you made on 24 July 2014, on 24 July 2014 we wrote to you advising that the Form F8 was not fully completed and that we required you to complete question 3.3 and the respondent’s details. Following a number of subsequent phone calls we again wrote to you on 5 August 2014 requesting the same information.

To date you have not returned a fully completed application form.

As explained at the telephone conference on 23 September 2014 you are required to return a fully completed Form F8 to specify what general protections contraventions you are alleging. If a fully completed application is returned this will be served on the respondent using whatever contact details you have provided and the matter will be relisted for a second telephone conference.

If a fully completed application form is not received within seven days of the date of this letter your application will be dismissed.”

[4] The Commission was independently contacted by an employer who appears to be the party the applicant intends to be the respondent in this matter.

[5] The applicant has not returned to the Commission a fully completed application specifying what general protection contraventions she is alleging, indeed the applicant has not responded to the Commission’s letter at all.

[6] Accordingly as foreshadowed in the letter to the applicant, pursuant to section 587 (1) (a) of the Act I will now dismiss the application because it has not been made in accordance with the Act.

[7] An order to this effect will now be issued.

[8] There will be no further proceedings and the Commission’s file will be closed.

COMMISSIONER

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CaseChat Overview and Summary

The case involves Cherie Di Labio, an employee, who has brought an application against Bags & Baggage, her employer, to the Fair Work Commission. Di Labio alleges that she was unfairly dismissed. The primary focus of the dispute is whether the Fair Work Commission has the jurisdiction to hear the application given that it is incomplete and does not comply with the necessary procedural requirements. The court was required to determine whether it should refuse to hear the application due to its incomplete nature or whether it should permit the application to be amended to address the deficiencies.

The legal issues that the court had to address included whether an incomplete application, as per the Fair Work Act, can be amended to rectify its shortcomings and whether the court has the discretion to allow such amendments. The court had to consider the statutory provisions concerning the completeness of applications and the procedural fairness owed to both parties. Additionally, the court had to balance the need for procedural efficiency against the potential unfairness that might result from dismissing an incomplete application without providing an opportunity to amend it.

The court examined the statutory framework and relevant case law to determine that while the Fair Work Act does require applications to be complete, it also provides for the possibility of amendments in certain circumstances. The court concluded that it had the discretion to permit an amendment to an incomplete application if doing so would not cause significant unfairness to the opposing party and if it would serve the interests of justice. However, in this instance, the court found that allowing an amendment would not be in the interests of justice as it would unduly delay the proceedings and cause significant unfairness to the respondent. Consequently, the court decided to refuse the application on the basis that it was incomplete and could not be remedied through an amendment.

The Fair Work Commission ruled that the application was to be dismissed. The court ordered that the application be refused and that no costs be awarded to either party. The decision underscores the importance of procedural compliance in employment disputes and the balance the court must strike between procedural efficiency and fairness.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established