Geraldine Maraboli v Boston Scientific Pty Ltd

[2023] FWC 1779

[2023] FWC 1779

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Geraldine Maraboli
v

Boston Scientific Pty Ltd

(U2023/5971)

COMMISSIONER BISSETT MELBOURNE, 21 JULY 2023

Application for an unfair dismissal remedy

1. On 3 July 2023 Ms Geraldine Maraboli 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).

1. Ms Maraboli advised in the Form F2 Unfair Dismissal Application (Form F2) that she commenced employment with Boston Scientific Pty Ltd (the Respondent) on 25 July 2022 and that her dismissal will take effect 4 August 2023.

1. On 12 July 2023, the Commission emailed correspondence to Ms Maraboli’s nominated email address advising her that it appears that her application has been made prematurely. Further, this email advised that:

In considering whether to waive the irregularity in the application (ie it being made prior to the date of ‘dismissal) the National Practice Lead for Unfair Dismissals, Commissioner Bissett, seeks advice from you as to whether you are currently attending work or being paid during your notice period.

Your urgent attention to this matter is required. Should you fail to reply to this correspondence by 12.00pm Friday 14 July 2023 your application may be dismissed without further correspondence.

1. Later that day, the Commission received an email from Ms Maraboli advising that she is unable to return to work during her notice period. Ms Maraboli also advised that she has been on unpaid sick leave since May 2023 and will be on unpaid leave for the duration of her notice period.

1. On 14 July 2023, my chambers sent an email to Ms Maraboli advising of the following:

The Commissioner notes that, on the information you have provided, you remain employed by Boston Scientific Pty Ltd (Boston) and your employment will not end until 4 August 2023 (some 3 weeks from now but 4 weeks from the time you made your application).

Your application has been made prematurely (an application for unfair dismissal is, as a general rule, not made until the dismissal takes effect). This is because, until a dismissal takes effect a person has not been dismissed and therefore is not eligible to seek a remedy for unfair dismissal.

In these circumstances the Commissioner is considering dismissing your application as you have not, at this stage been dismissed. This would not stop you making an application following your ‘dismissal’ that would be progressed through the normal processes of the Commission. Such an application would need to be made within 21 days of the date the dismissal took effect.

1. In this email, my chambers advised Ms Maraboli that if she wished for her application to progress, she may provide advice to this effect. If she did wish for her application to proceed, I advised that I would require that she file with the Commission any submissions as to why her application should be accepted, when she still remained employed by the Respondent, by 18 July 2023.

1. To date Ms Maraboli has not replied to the Commission’s correspondence.

1. 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

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

1. As Ms Maraboli has not made her application in accordance with the FW Act, the application has no reasonable prospect of success. As such, the application is dismissed under s.587(1)(a) of the FW Act.

1. Ms Marabodi is however reminded that she can make an application of unfair dismissal after the date of her dismissal. She should make such an application within 21 days of the date her dismissal takes effect to ensure it is made within the time period prescribed by the FW Act.

COMMISSIONER

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