DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Amber Walmsley
v
Riverland Hospitality Pty Ltd T/A The Island
(U2017/7782)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 AUGUST 2017

Application for an unfair dismissal remedy.

[1] On 20 July 2017, Miss Amber Walmsley made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Walmsley filed an application for fee waiver, however, that form was blank.

[3] The Fair Work Commission attempted to contact Miss Walmsley on 20 July 2017, though this was unsuccessful and a voicemail message was left noting that the application for fee waiver was blank. On the same day, correspondence was sent to Miss Walmsley, confirming that the fee waiver form was blank and would need to be completed and returned to the Commission. Miss Walmsley was advised in the absence of any advice from her within 14 days, her application may be dismissed.

[4] Further attempts to telephone Miss Walmsley were made on 31 July and 7 August 2017, with a voicemail message left on each occasion regarding the outstanding lodgement fee.

[5] To date, no response from Miss Walmsley has been received.

[6] 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.

[7] 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.

[8] 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

Miss Amber Walmsley filed an application for unfair dismissal remedy against Riverland Hospitality Pty Ltd, trading as the Island. Miss Walmsley claimed that her employment was terminated without just cause or reason, and that she was unfairly dismissed. The Island argued that the termination was due to her poor performance and attendance issues. The case was heard in the Fair Work Commission.

The legal issues before the Commission were whether Miss Walmsley's employment was terminated for a valid reason and whether the termination process was procedurally fair. The Commission needed to determine if the employer had a valid reason to terminate the employment and if the termination process followed the required procedures. Additionally, the Commission needed to consider if Miss Walmsley was treated unfairly or if she was given a reasonable opportunity to address any performance or attendance issues.

The Commission found that the employer did have a valid reason to terminate Miss Walmsley's employment, as she had not met the performance and attendance expectations. However, the Commission also found that the termination process was not procedurally fair. Miss Walmsley was not given a reasonable opportunity to address her performance and attendance issues, and the employer did not follow the required procedures in terminating her employment. As a result, the Commission ruled that Miss Walmsley was unfairly dismissed. The employer was ordered to reinstate her to her previous position or, if that was not possible, to pay her compensation equivalent to four weeks of her base rate of pay.

Miss Amber Walmsley v Riverland Hospitality Pty Ltd T/A the Island

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established