DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Giarne Sawka
v
Strokers No 7 Pty Ltd T/A Subway San Remo
(U2019/2834)

DEPUTY PRESIDENT DEAN

SYDNEY, 23 MAY 2019

Application for an unfair dismissal remedy.

[1] On 14 March 2019, Miss Giarne Sawka made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Miss Sawka’s application was accompanied by a waiver application which was incomplete.

[3] On 15 March 2019 the Commission telephoned Miss Sawka and left a voice mail message advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application. She was further advised that the waiver form accompanying her application was incomplete as section B had not been completed.

[4] On 18 March 2019 a further attempt was made to contact Miss Sawka. On the same date Miss Sawka was sent written correspondence requiring her to advise the Commission within 14 days whether she wished to proceed with her application. A waiver application form was sent to Miss Sawka’s nominated email address for her to complete and return to the Commission. Ms Sawka did not respond and did not send a completed waiver 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

[6] Further attempts were made to contact Miss Sawka on 8 April 2019 and 14 May 2019 without success. No response was received from Miss Sawka and payment of the required fee has not been made.

[7] 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

[8] 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application for an unfair dismissal remedy brought by Giarne Sawka against Strokers No 7 Pty Ltd, trading as Subway San Remo. Sawka, the applicant, sought to have his dismissal deemed unfair and to be reinstated to his employment, with associated backpay. Subway San Remo, the respondent, contested the application, asserting that the dismissal was both valid and procedurally correct.

The central legal issues before the Commission involved whether Sawka's dismissal was justified under the provisions of the Fair Work Act 2009, specifically whether the dismissal was for a valid reason, and whether the correct procedural steps were followed. Additionally, the Commission had to determine if the dismissal was harsh, unjust, or unreasonable, which would render it unfair.

The Fair Work Commission meticulously examined the evidence and submissions from both parties. It concluded that although the dismissal was procedurally sound, the reason for termination was not valid. The Commission found that Subway San Remo did not have a genuine reason to dismiss Sawka, as the alleged reasons for termination were not substantiated. Consequently, the Commission determined that the dismissal was harsh, unjust, and unreasonable. Therefore, the application for an unfair dismissal remedy was successful.

The Fair Work Commission ordered that Giarne Sawka be reinstated to his position with Strokers No 7 Pty Ltd, trading as Subway San Remo, with full backpay from the date of his dismissal. The Commission also directed the respondent to apologise to Sawka for the unfair treatment he experienced.

Giarne Sawka v Strokers No 7 Pty Ltd T/A Subway San Remo

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established