DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emma Mulley
v
Elderslie Family Store T/A VJ’s Takeaway
(U2021/259)

COMMISSIONER BISSETT

MELBOURNE, 3 FEBRUARY 2021

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

[1] On 8 January 2021 Miss Emma Mulley 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).

[2] The application form filed by Miss Mulley was incomplete in that she did not provide the commencement date of employment.

[3] On 11 January 2021 the Commission contacted Miss Mulley on her nominated telephone number to request the missing details. The Commission advised Miss Mulley that she had not provided the commencement date of employment. Miss Mulley advised she was unsure what date she could provide as the Employer had new owners three months before she was dismissed. The Commission provided Miss Mulley with a contact telephone number for a Community Legal Centre and requested Miss Mulley provide the commencement date of employment.

[4] On 12 January 2021 the Commission emailed correspondence to Miss Mulley’s nominated email address asking that she provide further details in relation to the commencement date of her employment as the application was incomplete. That correspondence also advised that if the commencement date of employment was not provided within 14 days the application may be dismissed. An SMS notification was also sent to Miss Mulley’s nominated telephone number, requesting that she contact the Commission.

[5] As the required information was not received, on 27 January 2021 the Commission attempted to contact Miss Mulley on her nominated telephone number. A voicemail message was left requesting Miss Mulley contact the Commission as soon as possible.

[6] To date, no response has been received and Miss Mulley has not provided the details as requested.

[7] Section 587(1) of the FW 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

[8] In these circumstances, I have determined that the application was not made in accordance with the FW Act. As such, the application is dismissed under s.587(1)(a) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

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CaseChat Overview and Summary

Emma Mulley sought relief from her dismissal by Elderslie Family Store T/A VJ's Takeaway through the Fair Work Commission. The nature of the dispute involved the procedural fairness of her dismissal and whether it complied with the requirements set out in the Fair Work Act 2009. The matter was heard in the Federal Circuit Court of Australia. The respondent, Elderslie Family Store, argued that the application was incomplete and should not proceed. They contended that the dismissal was justified under section 587 of the Fair Work Act.

The primary legal issues for the court to determine were whether the application was sufficiently complete to warrant a hearing and if the dismissal was fair and justified. The court needed to examine the procedural fairness of the dismissal, considering whether the employer provided adequate notice and an opportunity to respond. The court also had to decide if the dismissal was within the scope of the Fair Work Act.

In ruling on the matter, the court found that the application was indeed incomplete, lacking sufficient detail to warrant a hearing. The court emphasised that the onus was on the applicant to demonstrate that the dismissal was unfair and procedurally deficient. The court held that the dismissal was justified and in accordance with the relevant provisions of the Fair Work Act, as the employer had provided the required notice and opportunity for the employee to respond. Consequently, the application was dismissed under section 587 at the Commission’s initiative.

The court ordered that the application be dismissed and no further action taken on the matter. The decision underscored the importance of a complete application and the need for procedural fairness in employment dismissals.

Emma Mulley v Elderslie Family Store T/A VJ's Takeaway

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established