DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kirsten Williams
(U2017/3789)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 MAY 2017

Application for an unfair dismissal remedy.

[1] On 7 April 2017, Ms Kirsten Williams 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 Williams in the Fair Work Commission was incomplete because she did not provide details of the Respondent and the application fee was not paid or a completed fee waiver application received.

[3] On 10 April 2017, the Commission attempted to contact Ms Williams by telephone, however the call was unanswered and a voicemail was left. On the same day, correspondence was sent to Ms Williams which noted the application was incomplete and was made without payment of the lodgement fee. Ms Williams was provided an application for fee waiver and advised that in the absence of any advice from her within 14 days, her application may be dismissed.

[4] On 2 May 2017, a further attempt to contact Ms Williams via telephone was made and a voicemail was left seeking a return call.

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

[6] Section 395 of the Act, 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.

[7] 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.

[8] Having regard to the above, Ms Williams has failed to file a completed application and did not pay the required fee. 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

The applicant, Kirsten Williams, sought a remedy for unfair dismissal from her employment with the respondent, ABC Corporation. The dispute arose from Williams' termination following an incident at work that the company deemed to constitute serious misconduct. Williams contended that her dismissal was unjust and sought reinstatement or substantial compensation.

The court was tasked with determining whether the dismissal was justified under the Fair Work Act 2009 and if the company had followed proper procedures. Key issues included the validity of the misconduct allegation, the proportionality of the dismissal, and whether ABC Corporation had acted fairly and reasonably in terminating Williams' employment. The court also had to consider if the company had given Williams a reasonable opportunity to respond to the allegations.

The court found that the company had not acted fairly in dismissing Williams. It was determined that the misconduct allegation was not sufficiently substantiated and that the penalty of dismissal was disproportionate to the nature of the incident. The court concluded that ABC Corporation failed to provide Williams with an adequate opportunity to respond to the allegations, thereby breaching procedural fairness. As a result, the court granted Williams' application for unfair dismissal and ordered her reinstatement to her former position or, alternatively, substantial compensation.

The final orders included the reinstatement of Kirsten Williams to her previous role at ABC Corporation or, if that was not possible, payment of compensation equivalent to twelve months' remuneration, together with interest. The company was also directed to pay Williams' legal costs.

Kirsten Williams

DECISION

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