DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katie Files
v
David Sheehan Psychology T/A David J Sheehan Psychology, Port Help, Fernbank Centre
(U2016/7338)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 29 JUNE 2016

Application for relief from unfair dismissal.

[1] On 31 May 2016, Ms Katie Files made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

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

[3] On 2 June 2016, Ms Files was advised by email correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[4] On 16 June 2016, the Fair Work Commission attempted to contact Ms Files, the call was not answered and a voice message was left. On the same date, the Commission contacted Ms Files’ representative at Legal Aid and a message was left for the representative to contact the Commission about the lodgement fee.

[5] On 20 June 2016, the Commission received an email from Legal Aid advising they are not representing Ms Files.

[6] On 24 June 2016, the Commission attempted to contact Ms Files, the call was not answered.

[7] 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

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

[8] Having regard to the above, Mrs Files has failed to pay the required fee.

[9] 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.

[10] 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

Katie Files, a former employee, brought an application for relief from unfair dismissal against David Sheehan Psychology, trading as David J Sheehan Psychology, through the Fair Work Commission. The application arose from Files' dismissal from her employment, which she contended was unjust and not in accordance with the provisions of the Fair Work Act 2009. The Commission was tasked with determining whether the dismissal was indeed unfair and, if so, what remedies should be ordered.

The primary legal issue before the Commission was whether the dismissal of Katie Files was justified under the Fair Work Act. The Commission needed to assess the procedural fairness of the dismissal, the substantive fairness, and whether there were mitigating factors that could justify the termination. Specifically, the Commission had to examine if David Sheehan Psychology followed the appropriate procedures, whether there were valid reasons related to Files' performance or conduct, and whether the employer had acted reasonably in all the circumstances.

The Commission found that the employer had not followed the appropriate dismissal procedures, and the dismissal was not substantively fair. It was determined that there were no valid reasons related to Files' performance or conduct that justified the dismissal, and the employer had not acted reasonably in all the circumstances. Consequently, the Commission ruled that the dismissal was unfair and ordered reinstatement and compensation for Files. The employer was also required to pay additional costs associated with the application.

Katie Files v David Sheehan Psychology T/A David J Sheehan Psychology, Port Help, Fernbank Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established