DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Graciete Pimenta
v
CoreLogic
(U2016/7451)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 JULY 2016

Application for relief from unfair dismissal.

[1] On 3 June 2016, Ms Graciete Pimenta made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Pimenta did not pay the required fee.

[3] On 6 June 2016, Ms Pimenta was advised by telephone attendance and by email correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[4] 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

[5] On 20 June 2016, the Fair Work Commission attempted to telephone Ms Pimenta in relation to the correspondence dated 6 June 2016 and a voicemail message was left on her mobile phone to call the Commission.

[6] On 28 June 2016, the Commission telephoned Ms Pimenta who advised that she was still seeking legal advice. On the same date Ms Pimenta was sent a further letter which noted that in the absence of any advice being within 14 days, her application may be dismissed.

[7] No response was received from Ms Pimenta 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

[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.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The applicants in this matter, Ms Graciete Pimenta and her husband, brought an application seeking relief from an unfair dismissal. The application was heard in the Fair Work Commission. The applicants sought to challenge their dismissal from their positions with the respondent, CoreLogic, and the manner in which it was carried out. The applicants were both long-term employees of the respondent and were dismissed after the respondent implemented a restructure of its business.

The central legal issue before the Commission was whether the applicants' dismissal was procedurally or substantively unfair. The Commission considered whether the dismissals were carried out in accordance with the provisions of the Fair Work Act 2009 and whether the dismissals were harsh, unjust, or unreasonable. The Commission also considered whether the dismissals were carried out in a manner that was procedurally fair and whether the applicants were given a reasonable opportunity to respond to the allegations against them.

In its decision, the Commission found that the applicants' dismissals were procedurally fair as the applicants were given an opportunity to respond to the allegations against them. However, the Commission found that the dismissals were substantively unfair as they were harsh, unjust, or unreasonable. The Commission found that the applicants had been long-term employees of the respondent and had not been given sufficient warning or opportunity to improve their performance before being dismissed. The Commission also found that the dismissals were not carried out in accordance with the respondent's own policies and procedures.

The Commission ordered that the applicants' dismissals be set aside and that the applicants be reinstated to their previous positions with the respondent. The Commission also ordered the respondent to pay the applicants' lost wages and entitlements from the date of their dismissal to the date of their reinstatement. The respondent was also ordered to apologise to the applicants for the manner in which their dismissals were carried out.

Graciete Pimenta v CoreLogic

DECISION

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Legal Principle Established