DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kathleen Dray
v
Compendium Design Store
(U2019/12915)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 13 JANUARY 2020

Application for an unfair dismissal remedy

[1] On 19 November 2019, Ms Kathleen Dray made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act).

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

[3] 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

[4] On 20 November 2019 the Fair Work Commission (the Commission) attempted to contact Ms Dray by telephone but the Commission representative was unsuccessful. A voice message was left, and a letter was sent by email advising her that the application required payment of the filing fee or a completed waiver form if she wished to proceed with the application.

[5] On 6 December 2019 and on 3 January 2020 the Commission attempted to contact Ms Dray in relation to the correspondence dated 20 November 2019. These calls were unanswered; detailed voice messages were left advising that the application may be dismissed if Ms Dray did not pay the filing fee or apply for fee waiver. No response was received from Ms Dray and payment of the required fee has not been made.

[6] 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

[7] 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 section 587(1)(a) of the FW Act. An Order 1 to this effect will be issued in conjunction with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR715872

CaseChat Overview and Summary

In the matter of Kathleen Dray against Compendium Design Store, the applicant, a former employee, sought an unfair dismissal remedy in the Fair Work Commission. Dray alleged that her dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. Compendium Design Store, the respondent, contended that the dismissal was warranted and in compliance with the Act. The Commission was tasked with determining the legitimacy of Dray's dismissal and whether it constituted an unfair dismissal under the Act.

The central legal issues before the Commission revolved around the validity of the dismissal process and whether it met the criteria for unfair dismissal. Specifically, the Commission had to assess whether Dray's dismissal was related to her employment, if there were genuine reasons for the dismissal, and whether the procedural fairness was adequately observed. Additionally, the Commission considered whether the dismissal was a case of harsh, unjust, or unreasonable treatment.

The Commission, after reviewing the evidence, concluded that the dismissal did not meet the threshold for being classified as unfair. The employer had provided evidence of poor performance and warnings prior to the termination. The Commission found that the employer had followed appropriate procedures and that the dismissal was not retaliatory, discriminatory, or otherwise unjust. Therefore, the application for an unfair dismissal remedy was dismissed. The Commission did not grant the relief sought by Dray and affirmed that the dismissal was fair and in compliance with the Act.

Kathleen Dray v Compendium Design Store

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established