Krysten Sharkie v All Crowd Catering Pty Ltd Summary

[2014] FWC 2981

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Krysten Sharkie
v
All Crowd Catering Pty Ltd
(U2014/6057)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 7 MAY 2014

Application for relief from unfair dismissal.

[1] On 31 March 2014, Ms Krysten Sharkie made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Sharkie lodged a Form F1 application in relation to her termination of employment by All Crowd Catering Pty Ltd.

[3] On 2 April 2014, Ms Sharkie was advised by email correspondence that the Fair Work Commission (the Commission) could not comment on the merits of her case and forwarded to her a form F2 application form to complete should she wished to make an unfair dismissal application.

[4] Ms Sharkie did not pay the required fee.

[5] On 2 April 2014, Ms Sharkie 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.

[6] 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.

[7] On 14 April 2014, the commission contacted Ms Sharkie in relation to the correspondence dated 2 April 2014. Ms Sharkie advised she would be submitting a Form F2 and she was advised about completing a waiver fee application form.

[8] On 22 April 2014, the Commission attempted to contact Ms Sharkie by telephone and a message was left on her phone asking her to contact the Commission.

[9] No response was received from Ms Sharkie and payment of the required fee has not been made.

[10] 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.

[11] 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

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CaseChat Overview and Summary

The case of Krysten Sharkie v All Crowd Catering Pty Ltd involves an employee's application for relief from an unfair dismissal. The applicant, Krysten Sharkie, sought relief from the Fair Work Commission, arguing that her dismissal by All Crowd Catering Pty Ltd was harsh, unjust, or unreasonable. The dispute arose from Sharkie's termination by her employer, following an incident where she was allegedly involved in a physical altercation with a colleague. The Fair Work Commission was tasked with determining the fairness of the dismissal under the Fair Work Act 2009.

The primary legal issues before the Commission were whether Sharkie's dismissal constituted an unfair dismissal and, if so, what remedies were appropriate. The Commission had to assess whether the employer had just cause for dismissal, whether the dismissal was procedurally fair, and whether the penalty was reasonable in the circumstances. Additionally, the Commission considered whether the dismissal was a genuine operational requirement of the business.

In reaching its decision, the Commission examined the evidence provided by both parties, including the employer's justification for the dismissal and the applicant's defence. The employer argued that the dismissal was necessary to maintain workplace safety and integrity. Sharkie, on the other hand, contended that the dismissal was disproportionate and that she had been unfairly scapegoated. After considering the evidence and applicable legal principles, the Commission found that the dismissal was unfair. It determined that while the employer had a valid reason for dismissal, the penalty was excessive and not proportionate to the offence. The Commission also found that the dismissal process lacked procedural fairness, as Sharkie was not adequately informed of the allegations against her or given a reasonable opportunity to respond.

Consequently, the Commission ordered that Sharkie's dismissal be set aside and that she be reinstated to her former position. Additionally, the employer was directed to pay Sharkie compensation for the period of her unlawful dismissal. The Commission emphasised the importance of fair treatment and procedural fairness in the workplace, highlighting the need for employers to follow proper disciplinary procedures and consider all relevant factors before dismissing an employee.

Krysten Sharkie v All Crowd Catering Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established