DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Elizabeth Reidy
v
IRT Illawarra Retirement Trust
(U2020/14911)

COMMISSIONER BISSETT

MELBOURNE, 11 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 17 November 2020, Ms Elizabeth Reidy made an application to the Fair Work Commission (the 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 Ms Reidy did not pay the required fee or file a completed waiver form.

[3] On 17 November 2020 the Commission attempted to contact Ms Reidy on her nominated telephone number to discuss payment of the required fee however, Ms Reidy did not answer the call. A voicemail message was left requesting Ms Reidy contact the Commission to arrange payment of the required fee.

[4] Later that day, the Commission posted correspondence to Ms Reidy’s nominated postal address advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received within 14 days, the application may be dismissed.

[5] Later that day, Ms Reidy contacted the Commission and requested for the filing fee to be waived. Ms Reidy was advised that a waiver form would be posted to Ms Reidy’s nominated postal address and the completed waiver would need to be received within 14 days.

[6] A final attempt to contact Ms Reidy was made by the Commission on 1 December 2020 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Ms Reidy that payment of the required fee was still outstanding.

[7] To date there has been no response from Ms Reidy, the required fee has not been paid and a completed waiver form has not been received.

[8] 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

[9] 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

[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 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 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Elizabeth Reidy commenced proceedings in the Fair Work Commission against her former employer, IRT Illawarra Retirement Trust, seeking an unfair dismissal remedy. The central issue before the Commission was whether the termination of Reidy's employment was justified under the provisions of the Fair Work Act 2009. Reidy contended that her dismissal was harsh, unjust, or unreasonable, arguing that she was wrongfully terminated for reasons related to her gender and age. The Trust, on the other hand, maintained that the dismissal was fair and reasonable, based on Reidy's unsatisfactory performance and conduct.

The Commission examined the evidence and arguments presented by both parties, focusing on the circumstances leading to Reidy's dismissal, the reasons given by the Trust, and the procedural fairness of the dismissal process. The Commission considered whether the Trust had followed a fair process in reaching the decision to terminate Reidy's employment and whether the decision was based on valid and justifiable grounds. The Trust's argument centred on Reidy's performance issues and conduct, which they claimed warranted her dismissal. Reidy argued that her termination was influenced by her gender and age, and that the Trust had not properly considered these factors in their decision-making process.

After considering the evidence, the Commission concluded that the Trust had followed a fair process in terminating Reidy's employment. The Commission found that the Trust had valid reasons for the dismissal, based on Reidy's unsatisfactory performance and conduct, and that the decision was not influenced by her gender or age. The Commission determined that the Trust had acted reasonably in terminating Reidy's employment and that the dismissal was fair. As a result, the Commission dismissed Reidy's application for an unfair dismissal remedy.

Elizabeth Reidy v IRT Illawarra Retirement Trust

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established