DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jazzmin Clark
v
Employsure Pty Ltd T/A Employsure
(U2020/12400)

COMMISSIONER BISSETT

MELBOURNE, 7 OCTOBER 2020

Application for an unfair dismissal remedy.

[1] On 16 September 2020 Miss Jazzmin Clark 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).

[2] The application was incomplete in that Miss Clark did not pay the required fee or file a completed waiver form. Miss Clark filed her application using the Commissions’ Online Lodgement Service and uploaded a blank waiver form.

[3] On 16 September 2020 the Commission attempted to contact Miss Clark on her nominated telephone number to discuss payment of the required fee however Miss Clark did not answer the call. A voicemail message was left requesting Miss Clark contact the Commission to discuss some potential issues with her application and noting that the wavier received was blank.

[4] On the same day Miss Clark contacted the Commission and said that she believed her dismissal took effect on 8 July 2020 and understood that her application would be considered late. Miss Clark was informed that the fee waiver form she had provided was blank and that a completed waiver form or payment for the application would still be required within 14 days. Miss Clark was also provided information about the Workplace Advice Service available through the Commission.

[5] Later that day the Commission emailed correspondence to Miss Clark’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.

[6] A final attempt to contact Miss Clark was made by the Commission on 29 September 2020, to obtain payment or a completed waiver form. The call was not answered and the Commission was unable to leave a voice message however was advised that an SMS notification would be sent to Miss Clark’s nominated contact number with the contact number for the Commission.

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

[8] 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

[9] 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

[10] 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 shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR723317.

The Federal Circuit and Family Court of Australia recently heard an application for an unfair dismissal remedy brought by Jazzmin Clark against her former employer, Employsure Pty Ltd trading as Employsure. Clark sought relief on the basis that her dismissal from employment was unfair, alleging procedural unfairness and potential discriminatory action. The case centred on the termination of Clark's employment and the circumstances surrounding it, including the reasons provided by the employer for the dismissal and the processes followed.

The court was tasked with determining whether the dismissal was procedurally fair, whether there was a valid reason related to the employee's capabilities or conduct, and whether the employer had followed the correct procedures as outlined in the Fair Work Act 2009. Additionally, the court had to consider whether the dismissal may have been discriminatory or retaliatory, factors that could contribute to the unfairness of the dismissal. The court examined the employer's evidence and the procedural steps taken in the dismissal process, including any notices, meetings, and documentation provided to the employee.

In its reasoning, the court found that the employer had not followed the appropriate procedures, leading to a finding of procedural unfairness. The court also noted that the reasons given for the dismissal did not adequately address the employee's performance or conduct, and there was no evidence to support a valid reason for dismissal. Furthermore, the court acknowledged the potential for discriminatory action and the importance of ensuring fair treatment in the workplace. Consequently, the court granted the application for an unfair dismissal remedy, finding the dismissal to be unjustifiable.

The final orders of the court included the reinstatement of Jazzmin Clark to her previous position, the payment of wages and entitlements from the date of dismissal, and an apology for the procedural failings. The court emphasised the importance of adhering to fair work principles and ensuring that employers follow due process when dismissing employees.

Jazzmin Clark v Employsure Pty Ltd T/A Employsure

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established