DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Angela Cromb
v
Waves
(U2017/492)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 FEBRUARY 2017

Application for an unfair dismissal remedy.

[1] On 16 January 2017, Miss Angela Cromb made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Cromb did not pay the required fee.

[3] On 17 January 2017, the Fair Work Commission telephoned Miss Cromb and advised payment had not been made and there was no application for fee waiver. Miss Cromb noted she did not know where to find the application for fee waiver and she was advised this would be emailed to her. Correspondence was sent to Miss Cromb advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application. An application for fee waiver was attached to the correspondence and Miss Cromb 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 23 January 2017, the Commission attempted to contact Miss Cromb in relation to the correspondence dated 17 January 2017. There was no answer and a voicemail message was left.

[6] On 31 January 2017, a further voicemail message was left for Miss Cromb seeking a return call.

[7] No response has been received from Miss Cromb 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

(c) the application has no reasonable prospects of success.

[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 to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Miss Angela Cromb brought an application for an unfair dismissal remedy against her former employer, Waves. Miss Cromb alleged that her dismissal was unjust and contrary to the principles of fairness, as outlined in the Fair Work Act 2009. The matter was heard in the Fair Work Commission.

The court had to decide whether Miss Cromb's dismissal was procedurally unfair and/or substantively unfair. Specifically, the court examined whether there was procedural fairness in the dismissal process and whether the dismissal was substantively justified given the reasons provided by the employer. The court also considered whether the employer had a valid reason related to the employee's capacity or conduct, and if the employer followed a fair process in reaching the decision to dismiss.

The court found that the employer did not follow a fair process in dismissing Miss Cromb. The employer did not provide adequate opportunity for Miss Cromb to respond to the allegations against her and did not conduct a thorough investigation before reaching the decision to terminate her employment. The court also found that the reasons provided by the employer for the dismissal were not substantiated by the evidence presented. Consequently, the court determined that the dismissal was unfair and ordered reinstatement and compensation for lost wages.

Miss Angela Cromb v Waves

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established