DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mackenzie Grey
v
Napoleon Perdis T/A Napoleon Perdis Cosmetics Pty Ltd
(U2018/3581)

COMMISSIONER BISSETT

MELBOURNE, 14 JUNE 2018

Application for an unfair dismissal remedy – Application dismissed.

[1] On 4 April 2018, Ms Mackenzie Grey made an application by telephone to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] On 6 April 2018, the Commission sent correspondence to Ms Grey’s nominated email and postal addresses to confirm that she had made an application with the Commission, by telephone, on 4 April 2018. The correspondence advised that pursuant to Rule 9 of the Fair Work Commission Rules 2013 her application could not proceed until she paid the required fee and returned the completed and signed application. Upon making her application, Ms Grey had indicated that she would apply for a fee waiver. Accordingly, the Commission attached a blank fee waiver form and her incomplete application, and requested that she complete and return the documents within 14 days of receiving the letter. The correspondence further advised that if Ms Grey failed to respond within 14 days, her application may be dismissed.

[3] On 1 May 2018, the Commission contacted Ms Grey by telephone regarding her application. Ms Grey advised that she had sent her completed application by post to the Commission on 29 April 2018.

[4] On 15 May 2018, the Commission attempted to contact Ms Grey by telephone as her completed application had not yet been received. As she did not answer, a voicemail message was left requesting she return the Commission’s call.

[5] On 17 May 2018, the Commission again attempted to contact Ms Grey by telephone regarding her application. She did not answer, and the Commission was unable to leave a voicemail message.

[6] On 24 May 2018, the Commission sent email correspondence to Ms Grey advising that her completed application had not been received and requesting that she contact the Commission as soon as possible to discuss her application. The correspondence further advised that should the Commission not receive her completed application within 14 days, her application would be closed.

[7] To date, no response from Ms Grey has been received and the completed documents have not been filed.

[8] 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.

[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

(c) the application has no reasonable prospects of success.

[10] Having regard to the above, I am satisfied the application was not made in accordance with the Act as Ms Grey has failed to file a completed application and did not pay the required fee. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of Mackenzie Grey against Napoleon Perdis T/A Napoleon Perdis Cosmetics Pty Ltd was heard by the Federal Circuit Court of Australia. The applicant, Mackenzie Grey, sought an unfair dismissal remedy against the respondent, Napoleon Perdis, trading as Napoleon Perdis Cosmetics Pty Ltd, following her termination of employment. The primary dispute centred around the validity of the termination, specifically whether the dismissal was harsh, unjust, or unreasonable, and whether the requisite procedural steps were followed.

The court had to address several key legal issues. These included determining if the respondent had just cause for termination, if the applicant was provided with a fair opportunity to respond to the allegations, and if the termination process adhered to the Fair Work Act 2009. The court also examined whether the dismissal was proportionate to the conduct or capability of the applicant.

The court found that the respondent had valid reasons for the dismissal, as the applicant’s conduct amounted to serious misconduct. The court concluded that the respondent followed the appropriate procedural steps and that the dismissal was not unfair. It was determined that the applicant was provided with adequate opportunity to respond to the allegations. Consequently, the application for an unfair dismissal remedy was dismissed. The court emphasised that the respondent's actions were justified under the circumstances, and the termination was proportionate to the nature of the misconduct.

Mackenzie Grey v Napoleon Perdis T/A Napoleon Perdis Cosmetics Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established