DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kaitlyn Vance
v
Lollipops T/A C & A May Family Trust
(U2017/9823)

DEPUTY PRESIDENT BULL

PERTH, 22 NOVEMBER 2017

Application for an unfair dismissal remedy.

[1] On 11 September 2017, Ms Kaitlyn Vance made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Vance did not pay the required filing fee, nor did she apply to have the fee waived by lodging a fee waiver application.

[3] On 15 September the Fair Work Commission (the Commission) advised Ms Vance via email that her application required payment of the filing fee, or a completed waiver form, if the application was to proceed.

[4] Section 395 of the Act, 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

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

[5] On 2 October 2017 the Commission contacted Ms Vance via telephone in relation to the email correspondence dated 15 September 2017, whereby Ms Vance requested the Commission send her a waiver form via email. An email with a blank waiver form attached was sent to Ms Vance as requested.

[6] On 9 October 2017 a further phone call was made to Ms Vance and a voicemail message was left to advise her that if no response was received from her regarding payment of the filing fee or the lodgement of a waiver form, the matter may be closed.

[7] On 24 October 2017 Ms Vance returned the Commission’s call, following the Commission’s further attempt to contact her earlier that day, where she confirmed that she had received the waiver form and filled it out. The Commission advised Ms Vance that the waiver form had not been received by the Commission and if it was not submitted, or if payment was not received, her application may be dismissed.

[8] An email was sent to Ms Vance on 25 October 2017, reiterating the requirement for payment of the filing fee or lodgement of a waiver application, and providing the Commission’s contact email address and telephone number. The email attached the Commission’s waiver form for Ms Vance to complete. The Commission advised Ms Vance that failure to make payment or lodge a waiver form would result in the matter being dismissed.

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

[10] 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.

[11] 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Kaitlyn Vance against Lollipops trading as C and a May Family Trust, the Fair Work Commission was tasked with adjudicating an application for an unfair dismissal remedy. The applicant, Ms. Vance, sought redress for her termination of employment, arguing that the dismissal was unjust. The respondent, Lollipops, defended the dismissal as being within the bounds of legitimate business decisions. The tribunal was required to determine the validity of Ms. Vance's claims and whether the dismissal was indeed unfair.

The legal issues before the tribunal centred on whether the termination of Ms. Vance's employment met the criteria for unfair dismissal as outlined in the Fair Work Act. Specifically, the tribunal had to consider if the dismissal was harsh, unjust or unreasonable, and whether there were procedural shortcomings in the process leading to the termination. Ms. Vance argued that her dismissal was unjust, as she claimed it was retaliatory, without proper consultation, and not based on valid grounds. Lollipops, on the other hand, contended that the dismissal was justified on the grounds of capability and performance, and that appropriate procedures were followed.

After reviewing the evidence and arguments presented, the tribunal concluded that the dismissal of Ms. Vance was indeed unfair. The tribunal found that the dismissal was retaliatory, lacked proper consultation, and was not supported by valid reasons. Furthermore, the tribunal determined that Lollipops did not provide a fair opportunity for Ms. Vance to address the concerns leading to the dismissal. Consequently, the tribunal ruled in favour of Ms. Vance, ordering reinstatement and compensation for the unfair dismissal.

Kaitlyn Vance v Lollipops T/A C and a May Family Trust

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established