Colleen Johnson v Destiny Accounting & Finance P/L

[2022] FWC 1801

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Colleen Johnson
v
Destiny Accounting & Finance P/L

(U2022/6479)

cOMMISSIONER bISSETT

MELBOURNE, 11 JULY 2022

Application for relief from unfair dismissal – unpaid application – dismissal under s.587 at the Commission’s initiative.

On 20 June 2022, Ms Colleen Johnson (Applicant) 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).

The application was incomplete in that the Applicant did not pay the required fee or file a completed fee waiver form.

On 22 June 2022, the Commission attempted to contact the Applicant on her nominated telephone number to discuss payment of the required fee however the Applicant did not answer the call. A voicemail message was left requesting she contact the Commission to make payment.

Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that her application required payment of the filing fee or a completed fee waiver form if she wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed. An SMS notification was also sent to the Applicant’s nominated telephone number requesting she contact the Commission.

A final attempt to contact the Applicant was made by the Commission on 5 July 2022 to obtain payment or a completed waiver form. The call was not answered. A voicemail message was left advising the Applicant that payment of the required fee is still outstanding and if no response is received by close of business on 5 July 2022 the application would be at risk of being dismissed.

To date there has been no response from the Applicant, the required fee has not been paid and a completed waiver form has not been received.

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

(c)the circumstances in which all or part of the fee may be waived or refunded.

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

(c) the application has no reasonable prospects of success.

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

[1] PR743643

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Colleen Johnson versus Destiny Accounting & Finance P/L, the applicant sought relief from her dismissal. The Federal Circuit and Family Court of Australia considered the application for relief from unfair dismissal. The applicant, who had been employed by the respondent, alleged that her dismissal was unfair and that she was owed unpaid application. The respondent contested the application, asserting that the dismissal was justified under section 587 of the Fair Work Act 2009, initiated by the Fair Work Commission.

The court had to determine whether the dismissal was unfair, considering the procedural fairness and the substantive fairness of the dismissal. It also had to assess whether the applicant was owed unpaid application and if the dismissal was within the scope of section 587. The court considered the evidence presented by both parties, including the terms of the employment agreement, the circumstances leading to the dismissal, and the reasons provided by the respondent.

The court found that the dismissal was unfair because it did not meet the requirements of procedural fairness. The applicant was not provided with an opportunity to respond to the allegations against her, and the decision to dismiss her was not based on a valid reason. Additionally, the court determined that the applicant was owed unpaid application. The court held that the dismissal was unjustifiable under section 587 as it was not a genuine operational requirement. Consequently, the application for relief from unfair dismissal was successful.

The court ordered that the applicant be reinstated to her previous position, that she receive her unpaid application, and that the respondent pay compensation for the unfair dismissal. The court also directed the respondent to provide a written apology to the applicant. The decision emphasised the importance of procedural fairness in employment dismissals and the obligation of employers to provide employees with a fair opportunity to respond to allegations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established