DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie Mark
v
Pod Pac T/A Podista Coffee Pods
(U2016/11620)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 31 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 20 September 2016, Ms Kylie Mark made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

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

[3] On 21 September 2016, Ms Mark 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. She was advised in the absence of advice from her within 14 days, her application may be dismissed.

[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 7 October 2016, the Fair Work Commission (Commission) attempted to contact Ms Mark by telephone in relation to the correspondence dated 21 September 2016. A voice message was left. No response was received from Ms Mark and payment of the required fee has not been made.

[6] On 19 October 2016, the Commission sent further correspondence to Ms Mark noting that the filing fee for her application remained unpaid. It was noted that unless advice was received by the Commission within 7 days, her application would be dismissed.

[7] To date, no response from Ms Mark has been received.

[8] 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.

[9] 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 section 587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Kylie Mark brought an application against Pod Pac T/A Podista Coffee Pods for relief from unfair dismissal. The applicant, an employee of the respondent, claimed that her dismissal was unfair under the Fair Work Act 2009. The application was heard in the Fair Work Commission, with Deputy President G. G. Lee presiding.

The central legal issue before the court was whether the applicant's dismissal was procedurally or substantively unfair. The applicant argued that the dismissal was not only procedurally unfair due to inadequate consultation and the absence of a formal meeting but also substantively unfair because there was no valid reason for termination. The respondent contended that the dismissal was both procedurally and substantively fair, asserting that the applicant's actions warranted termination and that the necessary procedural steps were followed.

The court found that while the procedural fairness was lacking due to the absence of a formal meeting and inadequate consultation, the substantive fairness of the dismissal was upheld. The respondent had provided evidence that the applicant had engaged in misconduct, which justified the termination. The court concluded that the procedural unfairness did not outweigh the substantive fairness of the dismissal. Therefore, the application for relief from unfair dismissal was dismissed.

Kylie Mark v Pod Pac T/A Podista Coffee Pods

DECISION

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