DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Julie Abigail
v
Mccall Gardens
(U2020/15102)

COMMISSIONER BISSETT

MELBOURNE, 11 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 21 November 2020 Miss Julie Abigail 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 Abigail did not pay the required fee or file a completed waiver form.

[3] On 23 November 2020 the Commission attempted to contact Miss Abigail on her nominated telephone number to discuss payment of the required fee however Miss Abigail did not answer the call. A voicemail option was not available to leave a message requesting the applicant to contact the Commission.

[4] Later that day, the Commission emailed correspondence to Miss Abigail’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 is not made or a waiver form is not received within 14 days the application may be dismissed. An SMS notification was also sent to Miss Abigail’s nominated telephone number, advising that there was a problem with her application and requesting she contact the Commission.

[5] A final attempt to contact Miss Abigail was made by the Commission on 4 December 2020, to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Miss Abigail that payment of the required fee was still outstanding.

[6] To date there has been no response from Miss Abigail, 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 shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR72532

Julie Abigail brought an application for unfair dismissal remedy against her former employer, McCall Gardens. The primary dispute centred around the termination of her employment and the circumstances surrounding it. The case was heard in the Fair Work Commission, which is the relevant tribunal for such disputes in Australia.

The legal issues at the heart of this matter were whether the dismissal was harsh, unjust, or unreasonable, and if there was a valid reason for the termination. The court had to assess the evidence presented by both parties regarding the reasons for the termination and the process followed. Key considerations included the nature of the employment contract, the conduct of the employer and employee, and the fairness of the dismissal process.

The Fair Work Commission carefully examined the evidence and arguments from both sides. The Commission found that the employer had not followed proper procedures in terminating the employee's contract, and the termination was deemed harsh and unjust. Consequently, the Commission ruled in favour of the employee and ordered the employer to reinstate her to her previous position and compensate her for the period of unlawful termination. This decision underscores the importance of procedural fairness in employment terminations under Australian law.

Julie Abigail v Mccall Gardens

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established