DECISION

Fair Work Act 2009
s.365—General protections

Melissa Welsh
v
ACFS Port Logistics Pty Ltd
(C2019/1360)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 26 APRIL 2019

Application to deal with contraventions involving dismissal.

[1] Ms Melissa Welsh (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 1 March 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by ACFS Port Logistics Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Ms Welsh’s application was incomplete in that no payment of the lodgement fee had been received. Ms Welsh had submitted an application for waiver of the lodgement fee; however it had not been completed, with all sections of the form remaining blank.

[2] On 4 March 2019, the Commission contacted the Applicant to advise her that the lodgement fee remained unpaid and her application for a fee waiver was incomplete. The Applicant advised the Commission that she had completed the fee waiver application and had attempted to send it three times via email, but was experiencing difficulties. Ms Welsh was advised that the waiver or payment of the filing fee must be received by the Commission within 14 days.

[3] The Commission subsequently emailed a letter to the Applicant with a copy of the waiver form. On 25 March 2019, the Commission also emailed a letter to the Respondent advising that the Commission was awaiting further information from the Applicant before her application could be progressed.

[4] The Commission attempted to contact the Applicant via telephone on 26 March 2019 to advise her fee waiver form had still not been received in response to the correspondence sent on 4 March 2019. Ms Welsh was uncontactable and there was no facility to leave a voicemail requesting that she contact the Commission to pay the lodgement fee.

[5] The Commission sent further correspondence via email and post to the Applicant on 26 March 2019, with a request for payment and another blank F80 fee waiver form. It was foreshadowed that Ms Welsh’s application may be dismissed unless she either completed the waiver form or paid the lodgement fee. Despite these repeated attempts to contact Ms Welsh, the Commission has received no completed waiver form or lodgement fee payment.

[6] A further attempt to contact the Applicant by telephone was made on 11 April 2019 but again there was no facility to leave a voicemail requesting that she contact the Commission to pay the lodgement fee.

[7] No correspondence has been received from the Applicant since her application was lodged on 1 March 2019 or following the Commission’s discussion with her on 4 March 2019.

[8] Section 587 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

(2) Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[9] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“367 Application fees

(1) The application 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 section 365; and

(b) a method for indexing the fee; and

[10] Ms Welsh has failed to comply with s.367(1) of the Act. Accordingly, her application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer

Melissa Welsh has brought an application against ACFS Port Logistics Pty Ltd for contraventions involving dismissal. The case was heard in the Fair Work Commission. The primary dispute revolves around whether the dismissal of Ms. Welsh was unjust and, if so, what remedies should be applied.

The legal issues before the Commission included the validity of the dismissal, whether it was unfair or discriminatory, and the implications under the Fair Work Act 2009. The crux of the matter was whether the employer had just cause to terminate Ms. Welsh and whether the process followed was compliant with the statutory requirements. Ms. Welsh argued that her dismissal was without proper grounds and was retaliatory, while the employer contended that the dismissal was justified due to performance issues.

The Commission examined the evidence presented by both parties and the procedural fairness of the dismissal process. It found that the employer failed to adequately address performance concerns prior to the dismissal and did not follow the necessary procedural steps outlined in the Fair Work Act. The Commission determined that the dismissal was unjust and ordered the employer to reinstate Ms. Welsh to her former position and pay her compensation for the period of unlawful termination. Additionally, the employer was required to provide a formal apology to Ms. Welsh for the mishandling of her dismissal.

Melissa Welsh v ACFS Port Logistics Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established