DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kahli Hicks
v
Cuppa @ Clifton
(U2016/4374)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 10 MARCH 2016

Application for relief from unfair dismissal.

[1] On 8 February 2016, Ms Kahli Hicks made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Hicks did not pay the required fee.

[3] On 8 February 2016, the Commission attempted to contact Ms Hicks by telephone without unsuccessful. Correspondence was sent on the same day advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[4] Section 395, which deals with application fees, provides:

“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

[5] On 22 February 2016, the Commission attempted to contact Ms Hicks in relation to the correspondence dated on 8 February 2016 and was again, unsuccessful. Further correspondence was sent which reiterated that the application was unpaid and that in the absence of any advice from her the application may be dismissed.

[6] No response was received from Ms Hicks and payment of the required fee has not been made.

[7] Section 587(1) of the 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.”

[8] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Kahli Hicks v Cuppa @ Clifton involved an application for relief from an unfair dismissal. The applicant, Kahli Hicks, was employed by Cuppa @ Clifton, a café located in Queensland. The primary dispute centred on the fairness of Ms Hicks' dismissal from her position as a barista. The matter was heard by the Fair Work Commission in Australia.

The legal issues before the Commission were whether Ms Hicks' dismissal was genuine, related to her capacity or conduct, or for some other substantial reason. Furthermore, the Commission needed to determine whether the dismissal was procedurally fair and whether it constituted an unfair dismissal under the Fair Work Act 2009. The crux of the dispute was the employer's justification for the dismissal, which was based on Ms Hicks' alleged inability to perform her duties due to a medical condition.

The Commission examined the evidence provided by both parties, including medical reports, workplace records, and testimonies. It found that while Ms Hicks had a medical condition, the employer had not adequately accommodated her needs or followed a fair process before deciding to terminate her employment. The Commission determined that the dismissal was not genuine, as it was not related to her capacity or conduct, but rather due to a lack of reasonable adjustment. Consequently, the application for relief from unfair dismissal was upheld.

The final orders included the reinstatement of Ms Hicks to her previous position, the payment of back pay, and compensation for the unfair dismissal. The employer was also directed to provide appropriate training and support to prevent a recurrence of similar issues in the future. This decision underscores the importance of employers providing reasonable adjustments and following fair procedures when dealing with employees with medical conditions.

Kahli Hicks v Cuppa @ Clifton

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established