Michaila Fraietta v Castle Hill Funhouse Incorporated T/A Castle Hill Funhouse Summary

[2022] FWC 1764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 – Unfair dismissal

Michaila Fraietta
v
Castle Hill Funhouse Incorporated T/A Castle Hill Funhouse

(U2022/6057)

cOMMISSIONER bISSETT

MELBOURNE, 7 JULY 2022

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

On 6 June 2022, Ms Michaila Fraietta (Applicant) 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 was incomplete in that the Applicant did not pay the required fee or file a completed waiver form.

On 7 June 2022, the Commission attempted to contact the Applicant on her nominated telephone number to discuss payment of the required fee however, the Applicant did not answer the call. A voicemail message was left advising the Applicant she contact the Commission to make payment.

Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that her application required payment of the filing fee or a completed fee waiver form if she wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed.

A final attempt to contact the Applicant was made by the Commission on 21 June 2022 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising the Applicant that payment of the fee is still outstanding and if no response is received by close of business on the 22 June 2022 the application would be at risk of being dismissed.

To date there has been no response from the Applicant, the required fee has not been paid and a completed waiver form has not been received.

Section 395 of the FW Act, which deals with application fees, provides as follows:

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.

Section 587(1) of the FW 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.

Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. 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] PR743546

Printed by authority of the Commonwealth Government Printer

The applicant, Michaila Fraietta, sought relief from her dismissal from Castle Hill Funhouse Incorporated T/A Castle Hill Funhouse. The dispute centred on whether the dismissal was unfair under section 56 of the Fair Work Act 2009 (Cth). The case was heard in the Fair Work Commission. The legal issues before the Commission were whether the dismissal was harsh, unjust or unreasonable and whether there were valid reasons related to the applicant’s capacity or conduct for the dismissal. The Commission had to consider the proportionality of the employer’s actions and whether the employer followed a fair process.

The Commission held that the dismissal was harsh, unjust and unreasonable as the employer did not follow a fair process. The employer did not provide the applicant with adequate notice or an opportunity to respond to the allegations against her. The employer's decision to dismiss the applicant was not proportionate to the alleged misconduct. The employer's actions were unreasonable as they did not consider the applicant's length of service or personal circumstances. The Commission found that the employer had valid reasons for the dismissal related to the applicant's conduct, but these reasons were not sufficient to justify the harshness of the dismissal.

The Commission ordered that Michaila Fraietta be reinstated to her position and that she be paid her lost wages and entitlements. The employer was also ordered to apologise to the applicant for the unfair dismissal. The decision highlights the importance of following a fair process when dismissing an employee and the need for employers to consider the proportionality of their actions.

Michaila Fraietta v Castle Hill Funhouse Incorporated T/A Castle Hill Funhouse

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established