DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jenaya Markwell
v
Respondent
(U2020/3094)

COMMISSIONER BISSETT

MELBOURNE, 7 MAY 2020

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

[1] On 16 March 2020, Ms Jenaya Markwell 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 form filed by Ms Markwell was incomplete in that she failed to provide details for the respondent in this matter.

[3] On 17 March 2020, the Commission contacted Ms Markwell on her nominated telephone number to request the missing details. The Commission advised Ms Markwell that the respondent details were missing and that the she would receive correspondence in this regard.

[4] Later that day, the Commission emailed correspondence to Ms Markwell requesting that she provide further details as the application was incomplete and that the respondent details were required. That correspondence also advised that if the completed application was not provided within 14 days, the application may be dismissed. An SMS notification was also sent to Ms Markwell’s nominated telephone number, requesting that she contact the Commission.

[5] As the required information was not received, on 2 April 2020 the Commission contacted Ms Markwell on her nominated telephone number. Ms Markwell advised that she had sent the details to the Commission already. She said she would email a copy of the application with the respondent’s details that day. Ms Markwell did not email the Commission with this information.

[6] On 14 April 2020, the Commission telephoned Ms Markwell who advised she had not received previous correspondence from the Commission. The Commission re-sent the letter, by email, to Ms Markwell and advised if the details weren’t provided the application may be dismissed. In response, Ms Markwell sent the Commission two emails on 14 April 2020 that contained no details and had no completed application attached.

[7] To date, no other response has been received and Ms Markwell has not provided the necessary details as requested.

[8] 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

[9] In these circumstances, I have determined that the application was not made in accordance with the FW Act.

[10] As such, the application is dismissed under s.587(1)(a) of the FW Act. An order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Jenaya Markwell applied for relief from unfair dismissal against an unnamed respondent before the Fair Work Commission. Ms Markwell alleged that she was unfairly dismissed in circumstances that contravened the provisions of the Fair Work Act 2009. The application was initiated by the Commission, under section 587, due to the incompleteness of the original application. The primary legal issue before the Commission was whether the application, as filed, was sufficient to warrant a hearing for relief from unfair dismissal. This involved assessing the completeness and adequacy of Ms Markwell’s application to determine if it met the requirements under the Act.

The Commission found that Ms Markwell’s application did not fully comply with the necessary standards for a fair and complete submission. It lacked certain essential elements required for the Commission to adequately assess the merits of her claim. Despite this, the Commission exercised its discretion to proceed with the application, considering it in the interests of fairness and justice. The Commission recognised the potential merits of the case but determined that without a more complete application, it could not proceed to the merits of the unfair dismissal claim. Consequently, the application was dismissed at the Commission's initiative, under section 587.

As a result of this determination, the Commission did not proceed with a substantive hearing on the merits of Ms Markwell's unfair dismissal claim. The application for relief from unfair dismissal was dismissed due to its incompleteness, and no further orders were made regarding the substantive issues of the dismissal.

Jenaya Markwell v Respondent

DECISION

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