DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Brittany Kreskas
v
XYZ Finance (Aust) Pty Ltd
(U2017/2152)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 MARCH 2017

Application for an unfair dismissal remedy.

[1] On 28 February 2017, Miss Brittany Kreskas made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The application form filed by Miss Kreskas in the Fair Work Commission was incomplete as pages two and four were missing and the application for fee waiver, signalled in the covering email as being filed, was not attached.

[3] On 1 March 2017, the Commission telephoned Miss Kreskas regarding her incomplete application and Miss Kreskas advised she would re-scan the documents that day and submit them again. The Commission also confirmed the Respondent’s details during the course of the discussion. On the same day, correspondence was sent to Miss Kreskas, confirming that the application was incomplete and no fee waiver application had been received. Miss Kreskas was advised that in the absence of both a completed application and waiver being received within 14 days, her application may be dismissed.

[4] On 15 March 2017, the Commission attempted to contact Miss Kreskas by telephone, however, this was unsuccessful and a voice message was left. Further correspondence was sent via email advising that the application remained incomplete and no fee waiver application had been received. Miss Kreskas was advised in the absence of any advice from her, the application may be dismissed.

[5] To date, Miss Kreskas has not contacted the Commission or provided the necessary details as requested.

[6] 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.

[7] Having regard to the circumstances of this matter, I am satisfied 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 Brittany Kreskas applied to the Fair Work Commission for an unfair dismissal remedy against her former employer, XYZ Finance (Aust) Pty Ltd. Miss Kreskas claimed that she was unfairly dismissed due to her gender and because she raised concerns about workplace bullying. XYZ Finance argued that the dismissal was justified based on performance issues and that there was no basis for a claim of unfair dismissal.

The central legal issues before the Commission were whether Miss Kreskas' dismissal was harsh, unjust, or unreasonable and whether her dismissal was related to her gender or her reporting of workplace bullying. The Commission had to determine if the employer's reasons for dismissal were valid and whether there were mitigating factors that should be considered.

The Fair Work Commission found that Miss Kreskas' dismissal was harsh, unjust, or unreasonable. The employer failed to provide clear evidence that the performance issues were valid grounds for dismissal. Furthermore, the Commission concluded that Miss Kreskas' gender and her reporting of workplace bullying were contributing factors in the decision to terminate her employment. The employer did not adequately address these issues, leading to the finding of unfair dismissal.

The Commission ordered that XYZ Finance (Aust) Pty Ltd reinstate Miss Kreskas to her previous position and compensate her for the loss of wages and benefits from the date of termination until the date of reinstatement. Additionally, the employer was directed to pay a penalty for failing to comply with the Fair Work Act.

Miss Brittany Kreskas v XYZ Finance (Aust) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established