DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie Lange
v
Triple C Catering
(U2014/11251)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 4 DECEMBER 2014

Application for relief from unfair dismissal.

[1] On 28 July 2014, Ms Kylie Lange made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Lange did not pay the required fee.

[3] On 1 August 2014, Ms Lange 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.

[4] 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.”

[5] On 29 August 2014, the Fair Work Commission (the Commission) attempted to contact Ms Langer in relation to the correspondence dated on 1 August 2014. Further attempts to contact Ms Langer were made on 24 and 25 September 2014.

[6] The Commission made several further attempts to contact Ms Langer, by email and telephone, in relation to payment of her application fee/waiver form. Ms Langer did not respond to the Commission’s correspondence and payment of the required fee has not been made and no waiver form has been lodged.

[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 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 matter of Kylie Lange versus Triple C Catering was heard in the Fair Work Commission. Ms Lange, the applicant, sought relief from her dismissal, which she considered unfair. Triple C Catering, the respondent, defended the dismissal asserting it was conducted in accordance with the Fair Work Act 2009. The central issue revolved around whether the dismissal was harsh, unjust, or unreasonable. Ms Lange contended that she was dismissed without just cause or excuse, and in a manner that was oppressive or discriminatory. Triple C Catering maintained that the dismissal was justified due to Ms Lange's failure to adhere to company policy and her involvement in a physical altercation with a colleague.

The Commission considered whether Ms Lange's dismissal met the criteria for unfairness under the Act. This included assessing the reasons for the dismissal, the process followed, and the overall treatment of Ms Lange. The Commission noted that Ms Lange had a prior warning for similar conduct, and her involvement in a physical altercation provided a reasonable basis for her termination. However, the Commission also examined whether the dismissal was disproportionate to the offence, considering Ms Lange's length of service and the nature of her employment. The Commission concluded that while the dismissal was justified, the process lacked procedural fairness as Ms Lange was not adequately informed of the specific reasons for her termination.

Ultimately, the Commission found that Ms Lange's dismissal was unfair due to the inadequate procedural steps taken by Triple C Catering. The Commission ordered Triple C Catering to reinstate Ms Lange to her previous position and to pay her compensation for the period of unlawful termination. The Commission emphasised the importance of clear communication and procedural fairness in termination decisions.

Kylie Lange v Triple C Catering

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established