DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emily Hannah Genever
v
Under Wraps Franchise
(U2018/9671)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 OCTOBER 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 19 September 2018, Miss Emily Hannah Genever made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Genever did not pay the required fee.

[3] Later the same day, the Commission sought to contact Miss Genever by telephone to request the payment of the filing fee. As she did not answer, a voicemail was left requesting her return call. Subsequent email correspondence was sent to Miss Genever’s nominated email address advising that if she wished to proceed with her application, payment of the filing fee or an application to have the fee waived should be made as soon as possible. Miss Genever was also advised that in the absence of any advice from her within 14 days, her application may be dismissed.

[4] On 3 October 2018, the Commission made a further attempt to contact Miss Genever by telephone, which she did not answer and a voicemail was left requesting her return call.

[5] On 10 October 2018, the Commission contacted Miss Genever and warned her over the telephone that because she had not paid the application fee or sent an application for a fee waiver, her matter was at risk of being dismissed. Miss Genever advised the Commission that she would resend her application for a fee waiver.

[6] As nothing was received from Miss Genever, a follow-up telephone call to her was attempted by the Commission on 12 October 2018. A voicemail was left seeking her return call.

[7] On 16 October 2018, a final telephone call to Miss Genever was attempted. The call did not connect and a voicemail was unable to be left.

[8] To date, no response from Miss Genever has been received.

[9] 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

[10] 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

[11] 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, Miss Genever’s 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

Emily Hannah Genever, an employee, brought an application for unfair dismissal against Under Wraps Franchise, her former employer. The application was heard by the Fair Work Commission, where the central issue was whether the dismissal was unfair under the Fair Work Act 2009. The dispute arose from the termination of Genever's employment by Under Wraps Franchise, with Genever alleging that the dismissal was unjust and without proper cause.

The legal issues before the Commission involved determining whether the employer had a valid reason for terminating Genever's employment and whether the process followed was procedurally fair. The Commission had to consider the employer's evidence and arguments regarding the reasons for dismissal and whether these reasons were consistent with the terms of the termination. Additionally, the Commission needed to assess if the employer had followed the appropriate procedures in terminating Genever's employment.

The Fair Work Commission dismissed the application for an unfair dismissal remedy. The Commission found that the employer had valid reasons for terminating Genever's employment and that the process followed was procedurally fair. The employer presented evidence that the dismissal was due to Genever's poor performance and conduct, which was consistent with the terms of her employment. The Commission also determined that the employer had followed the correct procedures in terminating Genever's employment, including providing notice and an opportunity for Genever to respond to the allegations. Consequently, the application for an unfair dismissal remedy was dismissed.

Emily Hannah Genever v Under Wraps Franchise

DECISION

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