DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kelly Tumeth
(U2017/4872)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 14 JUNE 2017

Application for an unfair dismissal remedy.

[1] On 7 May 2017, Ms Kelly Tumeth made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] The application form filed by Ms Tumeth in the Fair Work Commission was incomplete because she did not provide details of the Respondent.

[3] On 8 May 2017, the Commission telephoned Ms Tumeth regarding her incomplete application. Ms Tumeth advised her employer was a Community Care Centre and that she was unsure whether she fell within the national workplace relations system. The Commission provided Ms Tumeth with the website details of the National Association of Community Legal Centres and confirmed written correspondence would be sent to her regarding the matter. On the same day, correspondence was sent to Ms Tumeth advising the application was incomplete as no Respondent details had been provided and that this information was required. Ms Tumeth was advised in the absence of any advice from her within 14 days, her application may be dismissed.

[4] On 18 May 2017 and 13 June 2017, two further telephone calls were made to Ms Tumeth and voicemails left seeking a return call.

[5] To date, no response from Ms Tumeth has been received.

[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

(c) the application has no reasonable prospects of success.

[7] Having regard to the above, Ms Tumeth has failed to file a complete application and I am satisfied 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

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CaseChat Overview and Summary

Kelly Tumeth lodged an application for unfair dismissal remedy with the Fair Work Commission (FWC). Tumeth was employed by the respondent, a company that operates in the retail sector, and was dismissed on the basis of unsatisfactory performance. Tumeth claimed that her dismissal was unfair, arguing that the company did not follow proper procedures and that the reasons for dismissal were not valid.

The primary legal issues before the FWC were whether the dismissal was harsh, unjust, or unreasonable, and whether the employer followed the necessary procedural steps before dismissing Tumeth. The FWC examined whether the company provided adequate warnings and opportunities for improvement, and whether the dismissal was a proportionate response to the alleged performance issues.

In its decision, the FWC determined that the dismissal was unfair. The employer did not provide sufficient warnings or opportunities for Tumeth to improve her performance, and the reasons for dismissal were not adequately substantiated. The FWC found that the employer's actions did not meet the standards of procedural fairness and that the dismissal was not proportionate to the alleged performance issues. Consequently, the FWC ordered the employer to reinstate Tumeth to her previous position and to pay her compensation for the period of unlawful termination.

Kelly Tumeth

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established