DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miriam Charlie
v
Mabunji Aboriginal Resource Association Inc
(U2016/13545)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 20 DECEMBER 2016

Application for relief from unfair dismissal.

[1] On 11 November 2016, Ms Miriam Charlie made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

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

[3] On 11 November 2016, a letter was sent to Ms Charlie advising her application was unsigned/undated and that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application. Ms Charlie was advised in the absence of any advice from her within 14 days, her application may be dismissed.

[4] Section 395 of the Act, 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.

[5] On 25 November 2016, the Fair Work Commission (the Commission) attempted to contact Ms Charlie via telephone in relation to the correspondence dated 11 November 2016. There was no answer and a voicemail message was left.

[6] On 28 November 2016, a voice to text message was left asking that Ms Charlie telephone the Commission. On the same day, a further letter was sent to Ms Charlie via express post, which noted that unless advice was received within 14 days, Ms Charlie’s application would be dismissed. On review of the Australia Post tracking number, it indicates the letter was delivered on 30 November 2016.

[7] Ms Charlie was contacted again by phone on 13 December 2016 and a voice to text message was left asking that she phone the Commission as a matter of urgency.

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

[9] 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.

[10] 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

CaseChat Overview and Summary

Miriam Charlie applied to the Federal Circuit and Family Court for relief from unfair dismissal, contending that her termination by Mabunji Aboriginal Resource Association Inc was unjust. The court was tasked with evaluating whether the dismissal was indeed unfair and if any legal principles were breached in the process. The primary issue revolved around whether the dismissal adhered to the statutory and common law requirements for procedural fairness and if the employer had valid grounds for terminating the employment.

The court considered the statutory provisions under the Fair Work Act 2009 and the common law principles of procedural fairness. It examined the circumstances surrounding Charlie's termination, including the reasons provided by the employer and whether appropriate procedures were followed. The court also evaluated if the employer had acted reasonably in all the circumstances, including whether there was an adequate investigation and if the decision-maker was impartial. Ultimately, the court found that the dismissal process was flawed due to procedural irregularities and a lack of proper investigation, leading to the conclusion that the dismissal was unfair.

The court granted the application for relief from unfair dismissal, ordering that Miriam Charlie's employment be reinstated and that she be compensated for the period of wrongful termination. The decision underscored the importance of adhering to both statutory and common law principles when dismissing an employee to ensure procedural fairness is upheld. This ruling reinforces the necessity for employers to follow proper procedures and provide adequate reasons for dismissal to avoid claims of unfairness.

Miriam Charlie v Mabunji Aboriginal Resource Association Inc

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established