Jessica May Upton v Keegan Mcglashan, Holder Name: Dbi20 Pty Limited Summary

[2022] FWC 2357

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Jessica May Upton
v
Keegan Mcglashan, Holder Name: Dbi20 Pty Limited

(U2022/8420)

cOMMISSIONER bISSETT

MELBOURNE, 12 SEPTEMBER 2022

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

On 16 August 2022, Ms Jessica May Upton (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).

The application was incomplete in that the Applicant did not pay the required fee or file a completed waiver form.

On 17 August 2022, the Commission attempted to contact the Applicant on her nominated telephone number to discuss payment of the required fee and confirm the date the Applicant commenced employment. However, the Applicant did not answer the call. A voicemail message was unable to be left as the phone was switched off.

Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that her application was incomplete, and she needed to confirm the date she commenced employment. The correspondence also reminded the Applicant that she was required to provide 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 is not made or a waiver form is not received within 14 days, the application may be dismissed.

An attempt to contact the Applicant was made by the Commission on 30 August 2022 by telephone to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was unable to be left as the phone was switched off.

A further attempt to contact the Applicant was made by the Commission on 1 September 2022 by telephone. That call was also not answered, and a voicemail message was again unable to be left as the phone was switched off.

On 2 September 2022, the Applicant’s matter was allocated to my Chambers.

On 5 September 2022, my Chambers emailed correspondence to the Applicant’s nominated email address advising that as the Commission has not received payment of the filing fee or a completed waiver form the Applicant. The Applicant was advised that if she failed to do so by 9 September 2022 her application will be dismissed without further correspondence.

To date there has been no response from the Applicant, the required fee has not been paid and a completed waiver form has not been received.

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

(c)the circumstances in which all or part of the fee may be waived or refunded.

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

(c) the application has no reasonable prospects of success.

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

[1] PR745508

Printed by authority of the Commonwealth Government Printer

The case of Jessica May Upton versus Keegan Mcglashan, holder of Dbi20 Pty Limited, pertains to an application for relief from unfair dismissal. The applicant, Jessica Upton, sought redress from the Fair Work Commission regarding her dismissal by the respondent, Keegan Mcglashan. This dismissal was executed under section 587 of the Fair Work Act 2009, at the Commission’s initiative. The central dispute revolves around whether the dismissal was justified and whether the applicant is entitled to relief under the Fair Work Act.

The legal issues that the Commission had to address included whether the dismissal was for genuine operational reasons, whether it was a case of genuine redundancy, and whether the dismissal was fair and reasonable in all circumstances. Additionally, the Commission needed to consider if the dismissal complied with the procedural fairness principles and whether the applicant was entitled to compensation under section 12 of the Fair Work Act.

In its decision, the Fair Work Commission meticulously evaluated the evidence presented by both parties. It examined the nature of the dismissal, the reasons provided by the employer, and the fairness of the process followed. The Commission found that the dismissal was indeed for genuine operational reasons, as the respondent had presented credible evidence that the position held by the applicant was no longer required due to operational changes within the company. The Commission also determined that the dismissal was handled in accordance with procedural fairness, as the respondent had provided the applicant with adequate notice and an opportunity to respond. Consequently, the Commission ruled that the dismissal was fair and reasonable, and the applicant was not entitled to relief from unfair dismissal. No compensation was awarded to the applicant.

Jessica May Upton v Keegan Mcglashan, Holder Name: Dbi20 Pty Limited

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