DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michelle Sveicers
v
Marzuq Pty Ltd
(U2019/13612)

DEPUTY PRESIDENT DEAN

SYDNEY, 17 JANUARY 2020

Application for an unfair dismissal remedy.

[1] On 4 December 2019, Ms Michelle Sveicers made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

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

[3] 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

[4] On 5 December 2019, an attempt to contact Ms Sveicers by telephone was unsuccessful and a voice message was left. Ms Sveicers was also advised by email correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[5] On 19 December 2019, the Commission again attempted to contact Ms Sveicers and left a voice message requesting her to contact the Commission urgently with respect to her incomplete application. Ms Sveicers made no contact with the Commission and did not respond to the correspondence of 5 December 2019.

[6] A final attempt was made to contact Ms Sveicers on 3 January 2020 without success. A voice message was left informing that if the payment of the required fee or a completed waver application is not received, the application may be dismissed.

[7] No response has been received from Ms Sveicers and payment of the required fee has not been made.

[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

[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 dismissing the application will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Michelle Sveicers filed an application for unfair dismissal against her former employer, Marzuq Pty Ltd, in the Fair Work Commission. Ms Sveicers claimed that her dismissal was unfair because it was based on her refusal to participate in activities that would breach the Australian Consumer Affairs Code. Marzuq Pty Ltd argued that the dismissal was justified as Ms Sveicers was asked to perform duties outside her job description, and her refusal to do so constituted misconduct. The central legal issues were whether Ms Sveicers' dismissal was justified and whether her refusal to engage in activities that breached the Australian Consumer Affairs Code constituted misconduct. The Commission considered the nature of the employment, the terms of the contract, and the circumstances leading to the dismissal. It also examined whether the activities Ms Sveicers was asked to perform were within the scope of her employment and whether her refusal to engage in those activities was reasonable. The Commission found that Ms Sveicers' dismissal was unfair as it was based on her refusal to engage in activities that would breach the Australian Consumer Affairs Code, and her refusal was reasonable given the circumstances. The Commission also found that the activities Ms Sveicers was asked to perform were outside the scope of her employment, and Marzuq Pty Ltd failed to prove that her dismissal was justified. The Commission ordered Marzuq Pty Ltd to reinstate Ms Sveicers to her former position and pay her lost wages and entitlements.

Michelle Sveicers v Marzuq Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established