DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Marie Pawliw
v
Definition Health Club
(U2015/9778)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 27 OCTOBER 2015

Application for relief from unfair dismissal.

[1] On 29 July 2015, Ms Marie Pawliw made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

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

[3] On 30 July 2015, Ms Pawliw was advised by correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[4] On 31 August 2015, 11 September 2015, 24 September 2015 and 25 September 2015, the Commission attempted to telephone Ms Pawliw and a voice mail was left asking Ms Pawliw to contact the Commission.

[5] On 25 September 2015, the Commission emailed Ms Pawliw advising that her application required payment of the filing fee or a completed waiver form.

[6] On 30 September 2015, the Commission attempted to contact Ms Pawliw in relation to the correspondence dated 30 July 2015 and 25 September 2015. A voice mail was left and an email was sent advising her that the application required payment of the filing fee or a completed waiver form if she wished to proceed with her application. No response was received from Ms Pawliw and payment of the required fee has not been made. Ms Pawliw was advised that if no response was received within 14 days, that her application would be dismissed.

[7] 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.

[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 s.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

Marie Pawliw brought a claim against Definition Health Club for unfair dismissal. The matter was heard in the Fair Work Commission, with the Commissioner, Deputy President Ryan, presiding. The primary issue before the court was whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act. The applicant alleged that she was unfairly dismissed due to her age, while the respondent argued that the dismissal was for genuine performance reasons.

The court examined the nature of the applicant's employment, the circumstances leading to the dismissal, and the employer's justification for the termination. The applicant, a 60-year-old receptionist, had been employed for approximately eight years. The respondent cited the applicant's performance issues and attendance record as grounds for dismissal. The court considered the applicant's history of attendance problems and the respondent's efforts to address these issues through warnings and a final written warning. The court also evaluated the proportionality of the dismissal in the context of the applicant's employment history and the respondent's disciplinary process.

Ultimately, the court found that the dismissal was not harsh, unjust, or unreasonable. The respondent had provided clear warnings and an opportunity for improvement, and the decision to terminate was based on sustained performance issues. The court held that the respondent had acted reasonably in dismissing the applicant. Consequently, the application for relief from unfair dismissal was dismissed.

Marie Pawliw v Definition Health Club

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established