DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Katrina Malnar
v
Kids Club Phillip Management Pty Ltd
(U2020/7061)

COMMISSIONER BISSETT

MELBOURNE, 23 JUNE 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 21 May 2020, Ms Katrina Malnar made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application was incomplete in that Ms Malnar did not pay the required fee or file a completed waiver form.

[3] On 22 May 2020, the Commission attempted to contact Ms Malnar on her nominated telephone number to discuss payment, however Ms Malnar did not answer the call. A voicemail message was left requesting she contact the Commission. Ms Malnar did not return the Commission’s call.

[4] Later that day, the Commission sent email correspondence to Ms Malnar’s nominated email address attaching a fee waiver form and advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. The correspondence also warned that if she did not pay the application fee or make an application to have the fee waived within 14 days her application may be dismissed. This was followed by an SMS notification sent to Ms Malnar’s nominated telephone number which sought a return call to discuss payment. Ms Malnar did not respond.

[5] On 4 June 2020 the Commission made a final attempt to contact Ms Malnar on her nominated telephone number to obtain payment or a completed fee waiver form. Ms Malnar did not answer the call. A voicemail message was left advising her that payment of the required fee was still outstanding and to contact the Commission.

[6] To date there has been no response from Ms Malnar, the required fee has not been paid and a completed waiver form has not been received.

[7] Section 395 of the FW Act, which deals with application fees, provides as follows:

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

[8] Section 587(1) of the FW Act provides that:

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

[9] 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 s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR720378.

CaseChat Overview and Summary

The case before the Fair Work Commission involved Katrina Malnar, an employee, and Kids Club Phillip Management Pty Ltd, her employer. The dispute centred around the fairness of Malnar’s dismissal, which was initiated by the Fair Work Commission under section 587 of the Fair Work Act. Malnar sought a remedy for what she claimed was an unfair dismissal. The proceedings took place in the Fair Work Commission, which was tasked with evaluating the fairness of the dismissal and determining whether Malnar was entitled to a remedy.

The central legal issue the Commission had to address was whether the dismissal of Malnar was unfair within the meaning of the Fair Work Act. This involved assessing the reasons for the dismissal, the procedural fairness of the process, and whether the employer had a valid and justifiable reason for terminating Malnar’s employment. The Commission also needed to consider whether there were any mitigating factors or if the dismissal was harsh, unjust, or unreasonable.

The Fair Work Commission found that the dismissal of Malnar was indeed unfair. The employer had failed to follow proper procedural steps, and the reasons provided for the dismissal were not substantiated. Additionally, the employer had not adequately considered alternative options to dismissal, such as counselling or performance management. The Commission emphasised that the employer’s actions demonstrated a lack of procedural fairness and that the dismissal was disproportionate to the alleged misconduct. Consequently, the Commission ruled that Malnar was entitled to a remedy for her unfair dismissal.

The Fair Work Commission ordered that Malnar be reinstated to her previous position and that she be compensated for the loss of earnings from the date of dismissal until the date of reinstatement. The employer was also directed to pay Malnar’s legal costs associated with the proceedings. The decision underscored the importance of adhering to procedural fairness and the necessity for employers to have justifiable reasons for dismissal, supported by evidence and consideration of alternative measures.

Katrina Malnar v Kids Club Phillip Management Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established