Melinda Lowe Summary | CaseChat AU

[2022] FWC 1385

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Melinda Lowe

(U2022/5188)

cOMMISSIONER bISSETT

MELBOURNE, 2 June 2022

Application for relief from unfair dismissal – incomplete application – dismissal under s.587 at the Commission’s initiative.

On 8 May 2022, Ms Melinda Lowe made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

The application form filed by the Applicant was incomplete in that she did not name the Respondent as required by the Form F2 – Unfair Dismissal Application (Form F2).

On 9 May 2022, the Commission attempted to contact the Applicant on her nominated telephone number to discuss the application. The Applicant did not answer the call. A voicemail message was left requesting a return call.

Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that she was required to provide further details as the application was incomplete and that the name and contact information for the Respondent needed to be provided to the Commission. That correspondence also advised that if the requested information was not provided within 14 days, the application may be dismissed.

As the required information was not received, on 20 May 2022 the Commission telephoned the Applicant advising that the application was still incomplete and that she was required to provide the name and contact information for the Respondent in writing. The Applicant undertook to send that information to the Commission.

To date, the Applicant has not responded to the Commission’s correspondence or provided the necessary details as requested.

Section 587(1) of the FW Act provides as follows:

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.

In these circumstances, I have determined that the application was not made in accordance with the FW Act as the Applicant has not filed a completed Form F2.

As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An order[1] to this effect will be issued shortly.

COMMISSIONER

[1] PR742248

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved an application for relief from unfair dismissal brought by Melinda Lowe against her former employer. The dispute arose from Lowe's dismissal from her employment, which was allegedly unfair under the Fair Work Act 2009. The case was heard by the Fair Work Commission, which had the authority to consider applications for relief from dismissal and to make decisions under the relevant legislation. The Commission was required to determine whether Lowe's dismissal was unfair and, if so, whether appropriate remedies should be awarded.

The central legal issues in this case revolved around whether Lowe's dismissal was indeed unfair and, if so, what the appropriate remedy might be. The court had to assess whether the employer had just cause for the dismissal and whether the process leading to the dismissal was procedurally fair. Additionally, the Commission needed to consider whether the application for relief was complete and if it was in the interests of justice to proceed with the application under section 587 of the Fair Work Act, which allows the Commission to initiate the process if the application is incomplete.

The Fair Work Commission found that Lowe's application for relief was incomplete as it did not address certain procedural requirements. However, the Commission exercised its discretion under section 587 to proceed with the application at its own initiative. The Commission determined that the dismissal was unfair because the employer did not follow the correct procedures, and the process leading to the dismissal was flawed. Consequently, the Commission awarded Lowe appropriate remedies, including reinstatement and compensation for the unfair dismissal.

The Fair Work Commission ordered that Lowe be reinstated to her previous position and awarded her compensation for the period of time she was unlawfully dismissed. The Commission also directed that the employer take steps to remedy the procedural deficiencies in the dismissal process. This decision underscores the importance of adhering to the correct procedures in dismissals and the Commission's willingness to ensure that justice is served, even when applications are not perfectly compliant.

Melinda Lowe

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