Kathrine Waugh v Australian Postal Corporation

[2024] FWC 1298

[2024] FWC 1298

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kathrine Waugh
v

Australian Postal Corporation

(U2024/3627)

DEPUTY PRESIDENT CLANCY MELBOURNE, 21 MAY 2024

Application for relief from unfair dismissal

1. On 28 March 2024, Ms Kathrine Waugh, made two applications to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).  At 4:51PM, Ms Waugh lodged a Form F2 – Unfair Dismissal Application (Form F2) along with supporting documentation. The Form F2 was missing the first 3 pages. The 4:51PM application was processed and given the matter number U2024/3698. At 5:09PM, Ms Waugh lodged another Form F2, along with supporting documentation, through the Commission’s Online Lodgement Service. This 5:09PM application was processed and given the matter number U2024/3627. It is the subject of this decision. The two Form F2s, with the exception of the 3 missing pages from the 4:51PM form, appear to be identical in substance, and the same supporting documents were attached on both instances.

1. Ms Waugh advised in her Form F2 that she commenced employment with Australian Postal Corporation on 18 December 2023 and that her dismissal took effect on 13 March 2024. On the basis of the information provided in her Form F2, Ms Waugh had not served the minimum employment period.

1. On 7 April 2024, the Commission emailed two pieces of correspondence to Ms Waugh’s nominated email address regrading matter U2024/3698. Firstly, Ms Waugh was advised that she had not answered all the questions in the Form F2 and that she would need to complete Questions 1.1 through to 1.6, provide your details and the contact details for the Respondent (the employer) and return the form to the Commission. Secondly, Ms Waugh was advised that she would also need to provide her employment dates in order to determine if she had served the minimum employment period. Ms Waugh was given until 21 April 2024 to provide the required information or else, she was warned, her application would very likely be dismissed.

1. On 8 April 2024, the Commission attempted to contact Ms Waugh on her nominated telephone number. A voicemail message was left requesting that Ms Waugh contact the Commission. Later that day, the Commission emailed correspondence to Ms Waugh’s nominated email advising her that she had made two dismissal applications and that she could only continue with one. Ms Waugh was advised that she would need to choose which application she would like to continue with by 22 April 2024.

1. As no response was received from Ms Waugh, on 22 April 2024 the Commission attempted to contact her on her nominated telephone number. A voicemail message was left requesting that Ms Waugh contact the Commission.

1. On 26 April 2024, Ms Waugh called the Commission. During the call Ms Waugh confirmed her employment dates and that she had not met the minimum employment period. The Commission also advised Ms Waugh that she had made two dismissal applications, when she could only make one. Ms Waugh advised that she did not want to discontinue her applications via telephone and stated that she would send an email to the Commission to confirm discontinuance. Ms Waugh was advised that, in the event that she did not make contact with the Commission her matters would likely be dismissed, and a decision issued and published to the Commission website. Ms Waugh has not made any further contact with the Commission.

1. Section 725 of the FW Act prevents, in particular circumstances, multiple applications being made in relation to the same dismissal and provides that “[a] person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.” Applications made under s.394 are such applications with which s.725 is concerned and further, are of the kind referred to in s.729 of the FW Act. When Ms Waugh lodged this s.394 application, her first s.394 application had not been withdrawn, failed for want of jurisdiction, or failed because the FWC was satisfied that the dismissal was a case of genuine redundancy. Both s.725 and s.729 are applicable in the circumstances of this case.

1. I am satisfied that this application was not made in accordance with s.725 of the FW Act. It is also apparent that Ms Waugh did not serve the minimum employment period. As such, the application is dismissed under s.587 of the FW Act. An Order[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR775115.

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<PR775114>