DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Miss Susan Robertson
v
Regis Aged Care
(U2016/12440)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 14 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 12 October 2016, Miss Susan Robertson made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] The application form filed by Miss Robertson in the Fair Work Commission (the Commission) was incomplete as she filed a blank application for fee waiver.

[3] On 12 October 2016, the Commission attempted to contact Miss Robertson on her mobile phone but was unsuccessful. On the same date, an email was sent to Miss Robertson advising her application was incomplete and that in the absence of a completed fee waiver application being received within 14 days, her application may be dismissed.

[4] On 26 October 2016, the Commission again attempted to contact Miss Robertson on her mobile phone but was unsuccessful. A further email was then sent to Miss Robertson advising her application was incomplete and that in the absence of a completed fee waiver application being received within 14 days, her application may be dismissed.

[5] On 9 November 2016, the Commission again attempted to contact Miss Robertson on her mobile phone but was unsuccessful.

[6] Miss Robertson did not contact the Commission or provide the necessary details as requested.

[7] 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

(c) the circumstances in which all or part of the fee may be waived or refunded.

[8] Having regard to the above, Miss Robertson has failed to pay the required fee or complete an application for fee waiver.

[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

Miss Susan Robertson, a former employee of Regis Aged Care, sought relief from an unfair dismissal order through the Fair Work Commission (FWC). Miss Robertson alleged that she was dismissed without just cause or reason, contrary to the Fair Work Act 2009. Regis Aged Care contested the application, asserting that the dismissal was justified due to alleged misconduct and poor performance.

The central legal issues revolved around whether Miss Robertson's dismissal was procedurally fair and whether it was substantively fair in the context of her employment circumstances. The FWC had to determine if the employer followed proper procedures in dismissing Miss Robertson, and whether the decision to terminate her employment was reasonable and justifiable. Additionally, the tribunal needed to consider whether there were mitigating factors that could influence the fairness of the dismissal.

The FWC found that Regis Aged Care had not provided adequate procedural fairness in the dismissal process, as Miss Robertson was not given a fair opportunity to respond to the allegations against her. The tribunal also determined that the dismissal was not substantively fair due to the employer's failure to adequately address Miss Robertson's performance issues and provide reasonable support and development opportunities. Consequently, the FWC ordered that the dismissal was unfair and remitted the matter to the employer to consider reinstatement or compensation. This decision underscored the importance of procedural fairness and the need for employers to provide support and reasonable opportunities for improvement before terminating employment.

Miss Susan Robertson v Regis Aged Care

DECISION

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Background to the litigation

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Legal Principle Established