Christie Burchell v Amak Pty Ltd T/A Wheel and Burrow

[2013] FWC 7938

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christie Burchell
v
Amak Pty Ltd T/A Wheel and Burrow
(U2013/10304)

COMMISSIONER WILSON

MELBOURNE, 16 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 6 June 2013, Ms Christie Burchell made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Burchell was allowed 14 days from the date of making the telephone application to complete a Form 2 - Application for Remedy from Unfair Dismissal (the application) in addition to paying the filing fee or completing waiver a form. Ms Burchell was advised that failure to return a completed application and payment/waiver form would result in her application being dismissed.

[3] On 24 July 2013, the Fair Work Commission (the Commission) corresponded with Ms Burchell by telephone and by post to advise that her completed application and payment were still outstanding. Further correspondence of this nature was sent to Ms Burchell on 16 September 2013 in addition to a telephone message on 24 September 2013.

[4] Rule 14 of the Fair Work Rules 2010 (the Rules) governs applications made by telephone in the Commission.

“14 Applications may be made by telephone

Despite rule 6, an application for an unfair dismissal remedy may be made by telephone at a telephone number approved for that purpose, provided that:

(a) the applicant pays the application fee prescribed in the Regulations by credit card, or applies for a waiver of the fee at the time the telephone application is made; and

(b) the applicant signsand returns to FWA a copy of the written application generated by FWA (amended as necessary to correct any errors) together with a completed application for waiver if a waiver of the fee has been sought.

. . .

Note 3 A telephone application will not be accepted unless the requirement in (a) is complied with. An application made under this rule will not be further processed by FWA until the requirement in (b) has been complied with.”

[5] Section 395 of the Act, 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.

[6] Having regard to the above, Ms Burchell has failed to file a completed application and did not pay the required fee.

[7] Section 587(1) of the Act provides as follows:

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.

[8] Having regard to the circumstances of this matter, I am satisfied that the application was not accompanied by the fee as prescribed by the Act and is therefore, not made in accordance with the Act. For this reason, the application is dismissed under s.587(1)(a) of the Act. An Order giving effect to this decision will be issued accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case involved Christie Burchell, an employee, who sought relief from unfair dismissal against Amak Pty Ltd, trading as Wheel and Burrow. The matter was heard in the Fair Work Commission, which has jurisdiction to hear disputes under the Fair Work Act 2009. Burchell contended that her dismissal was harsh, unjust, or unreasonable, contrary to section 383 of the Act. Wheel and Burrow argued that the dismissal was justified on the grounds of misconduct, specifically Burchell's failure to complete work tasks as assigned.

The court had to determine whether Burchell's dismissal was indeed unfair and whether the employer had a valid reason to terminate her employment. The court examined the employer's evidence regarding Burchell's failure to complete tasks, the employer's reasonable steps to address the issue, and whether Burchell had an opportunity to respond to the allegations against her. The court also considered the employer's policies and procedures for managing employee performance issues.

After reviewing the evidence and arguments presented by both parties, the Fair Work Commission found that Burchell's dismissal was not unfair. The court was satisfied that the employer had acted reasonably in dismissing Burchell, as there was sufficient evidence to support the claim of misconduct. The employer had provided Burchell with multiple opportunities to improve her performance and had followed the correct procedures in terminating her employment. Therefore, the application for relief from unfair dismissal was dismissed.

CaseChat Overview and Summary

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Legal Principle Established