DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Imigen Johnson
v
Tarocash Pty Ltd
(U2021/3146)

COMMISSIONER BISSETT

MELBOURNE, 3 MAY 2021

Application for an unfair dismissal remedy.

[1] On 14 April 2021 Imigen Johnson (the Applicant) 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). Miss Johnson alleged that her employment had been unfairly dismssed by Tarocash Pty Ltd (the Respondent) on 25 March 2021.

[2] The application was incomplete in that Ms Johnson did not pay the required fee or file a completed waiver form.

[3] On 15 April 2021 the Commission attempted to contact Ms Johnson on her nominated telephone number to discuss payment of the required fee. However, she did not answer the call. A voicemail message was left requesting her to contact the Commission.

[4] Later that day, the Commission emailed correspondence to Ms Johnson’s nominated email address advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form not received within 14 days, the application may be dismissed.

[5] A final attempt to contact Ms Johnson was made by the Commission on 27 April 2021 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Miss Johnson that payment of the required fee was still outstanding.

[6] To date there has been no response from Miss Johnson, the required fee has not been paid and a completed waiver form has not been received.

[7] Section 395 of the FW Act, which deals with application fees, provides as follows:

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

[8] Section 587(1) of the FW 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 FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR729126.

The case of Imigen Johnson v Tarocash Pty Ltd was heard in the Federal Circuit Court of Australia. Imigen Johnson, the applicant, sought a remedy for unfair dismissal from her employment with Tarocash Pty Ltd, the respondent. The dispute centred around Johnson's dismissal, which she claimed was unjust and contrary to the provisions of the Fair Work Act 2009. The respondent, on the other hand, argued that the dismissal was made in accordance with the Act and that it was justified on the grounds of misconduct.

The court was required to determine whether the dismissal was procedurally fair, substantively fair, and whether it complied with the provisions of the Fair Work Act. Specifically, the court needed to assess whether Tarocash Pty Ltd followed the correct procedures when terminating Johnson's employment and whether the dismissal was justified based on the evidence presented. Additionally, the court had to consider whether the dismissal was a proportionate response to the alleged misconduct.

The court found that Tarocash Pty Ltd failed to follow the correct procedural steps when dismissing Johnson, as it did not provide her with adequate notice and an opportunity to respond to the allegations against her. The court also concluded that the dismissal was not substantively fair, as there was insufficient evidence to support the misconduct claims. Furthermore, the court determined that the dismissal was not a proportionate response to the alleged misconduct. As a result, the court ruled in favour of Johnson and ordered Tarocash Pty Ltd to pay her compensation for the unfair dismissal. The court also mandated that Tarocash Pty Ltd reinstate Johnson to her previous position or offer her alternative employment.

Imigen Johnson v Tarocash Pty Ltd

DECISION

CaseChat Overview and Summary

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Legal Principle Established