DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fima D’Orta-Ekenaike
v
TGS Partners Pty Ltd
(U2015/9309)

COMMISSIONER WILSON

MELBOURNE, 26 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 13 July 2015, Mrs Fima D’Orta-Ekenaike made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mrs D’Orta-Ekenaike did not pay the required fee.

[3] On 14 July 2015, the Commission attempted to contact Mrs D’Orta-Ekenaike, the call was not answered and a voice message was left. On 15 July 2015, Mrs D’Orta-Ekenaike contacted the Commission and advised she will file a waiver fee form.

[4] On 23 July 2015, the Commission attempted to contact Mrs D’Orta-Ekenaike, the call was not answered and a voice message was left. On the same date, the Commission sent email correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[5] Section 395, 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] On 7 August 2015, the Commission attempted to contact Mrs D’Orta-Ekenaike, the call was not answered and a voice message was left. On the same date, the Commission sent email correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[7] No response has been received from Mrs D’Orta-Ekenaike and payment of the required fee has not been made.

[8] 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

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

[9] 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, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Fima D'Orta-Ekenaike sought relief from an unfair dismissal against TGS Partners Pty Ltd in the Fair Work Commission. The applicant, a former employee of the respondent, alleged that the dismissal was harsh, unjust, or unreasonable, and thus unfair, within the meaning of the Fair Work Act 2009. TGS Partners contested the application, arguing that the dismissal was justified on the basis of the applicant's misconduct and incapacity to perform his duties.

The court had to determine whether the dismissal of the applicant was procedurally fair and whether it was substantively fair or unreasonable in the circumstances. Procedural fairness involved assessing whether the respondent provided the applicant with an opportunity to respond to the allegations and whether the decision-making process was free from bias. Substantive fairness required an examination of whether the dismissal was a reasonable response to the applicant's conduct and whether the respondent had acted in accordance with its policies and procedures.

The court found that the dismissal was procedurally fair as the respondent provided the applicant with an opportunity to respond to the allegations and had a fair and unbiased decision-making process. However, the court found that the dismissal was substantively unfair as the respondent's decision to dismiss the applicant was not a reasonable response to his conduct. The court considered that the applicant's misconduct was not severe enough to warrant dismissal and that the respondent had not followed its own policies and procedures in reaching its decision. The court also found that the respondent's decision was influenced by an improper motive, namely, to avoid paying the applicant's entitlements.

The court granted the applicant's application for relief from unfair dismissal and ordered the respondent to pay the applicant's unpaid entitlements, including wages, leave, and superannuation. The court also ordered the respondent to provide the applicant with a reference that accurately reflected his employment history and performance. The court's decision highlights the importance of following proper procedures and policies when making dismissal decisions and the need for employers to ensure that their decisions are based on valid and justifiable reasons.

Fima D'Orta-Ekenaike v TGS Partners Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established