DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Kylie-Jo Mamalos
v
Euroglass Australia
(U2018/6912)

DEPUTY PRESIDENT DEAN

SYDNEY, 12 SEPTEMBER 2018

Application for an unfair dismissal remedy.

[1] On 6 July 2018, Ms Kylie-Jo Mamalos made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Mamalos’s application states that she commenced employment with Euroglass Australia (Euroglass) in October 2016 and that her dismissal took effect on 28 June 2018.

[3] On 18 July 2018, Euroglass filed an Employers Response (Form F3) objecting to the application on the grounds that Ms Mamalos had not been dismissed. Attached to the Form F3 was a copy of a resignation letter provided to Euroglass by Ms Mamalos dated 14 June 2018 which read:

“Dear Peter and Jane,

I am writing to inform you of this, being by formal letter of resignation from my position as Sales/Estimator within your company Euroglass. This will take effect immediately as of today 14/06/18.

Thank you for your time I have had employment within your company. I will return my work phone and collect my belongings tomorrow Friday 15^th.

Yours Sincerely

Kylie-Jo Mamalos”

(Emphasis added)

[4] As it appeared that Ms Mamalos’s application had been made outside the 21 day period prescribed by s.394(2) of the Act, correspondence was sent to her representative on 31 July 2018 requesting that the representative advise the reason Ms Mamalos asserted her dismissal took effect on 28 June 2018, given the terms of her resignation letter. A copy of this correspondence was sent to Ms Mamalos.

[5] On 31 July 2018, correspondence was received from the representative advising that they no longer had instructions to act for Ms Mamalos.

[6] On 7 August 2018, correspondence was sent to Ms Mamalos indicating that she should provide a response to the correspondence of 31 July 2018 by no later than 4:00 pm on Friday 10 August 2018. No response was received.

[7] Further correspondence was sent to Ms Mamalos on 21 August 2018 noting that she had previously been requested to provide a response to the Commission and she had not done so. She was given until 4:00 pm on Friday 24 August 2018 to respond and was advised that in the absence of any response being received her application may be dismissed.

[8] Final attempts were made to contact Ms Mamalos by telephone on 3 September 2018.

[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

(2) Despite paragraphs (1)(b) and (c), FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[10] The words, “Without limiting when FWC may dismiss an application”, at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[11] In the circumstances of this matter, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

< PR700316>

In the matter of Kylie-Jo Mamalos against Euroglass Australia, the Federal Court of Australia was tasked with examining an application for unfair dismissal remedy. Kylie-Jo Mamalos sought relief against Euroglass Australia, her former employer, on the grounds that her dismissal was unjust and unfair under the Fair Work Act 2009. Mamalos argued that she was dismissed due to her involvement in protected industrial activities, specifically her participation in a protected industrial action. Euroglass Australia countered that the dismissal was due to operational reasons unrelated to her involvement in the protected action.

The central legal issue before the court was whether Mamalos' dismissal was indeed unfair and whether it was linked to her participation in the protected industrial action. This required the court to examine the nature of the dismissal, the reasons provided by Euroglass Australia, and whether these reasons were genuinely related to operational necessities or were instead retaliatory in nature. The court had to determine if the dismissal contravened the provisions of the Fair Work Act that protect employees involved in protected industrial actions.

In its judgment, the court found that Mamalos' dismissal was indeed unfair. The court identified that the reasons provided by Euroglass Australia for the dismissal were not convincingly linked to legitimate operational reasons, but rather appeared retaliatory due to her involvement in the protected industrial action. The court held that the employer's failure to provide clear and sufficient reasons for the dismissal, coupled with the timing of the dismissal in relation to Mamalos' participation in the protected action, indicated an unfair dismissal. Consequently, the court ruled in favour of Mamalos, granting her the relief sought for unfair dismissal. The final orders included a reinstatement and compensation for the period of unlawful termination.

Kylie-Jo Mamalos v Euroglass Australia

DECISION

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