DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ms Kariss Aquino
v
Allied Forklifts Pty Ltd T/A Allied Forklifts Pty Ltd
(U2019/923)

DEPUTY PRESIDENT BINET

PERTH, 14 MARCH 2019

Application for an unfair dismissal remedy.

[1] On 30 January 2019, Mrs Kariss Aquino (Ms Aquino) made an application (Application) to the Fair Work Commission (FWC) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (FW Act).

[2] Mrs Aquino did not pay the required fee.

[3] On 30 January 2019, Ms Aquino was advised by telephone and emailed correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the Application.

[4] Section 395 of the FW 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 15 February 2019, the FWC attempted to contact Ms Aquino by telephone in relation to the correspondence dated on 30 January 2019. Contact could not be made and a voicemail message was left for Mrs Aquino.

[6] On 26 February 2019, the FWC contacted Ms Aquino and she advised she would be submitting an application for waiver of the filing fee that same day.

[7] On 8 March 2019, the FWC attempted to contact Ms Aquino by telephone. A detailed voicemail message was left to advise Ms Aquino the Application would be dismissed if she did not make payment or submit the waiver application. No response was received from Mrs Aquino and payment of the required fee has not been made.

[8] Section 587(1) of the FW 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 FW Act, the Application was not made in accordance with the FW Act. As such, the Application is dismissed pursuant to s.587(1)(a) of the FW Act.

[10] An Order dismissing the Application [Print PR705844] will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, Ms Kariss Aquino sought relief against Allied Forklifts Pty Ltd, alleging that her dismissal was unjust and unfair. The application was brought under the Fair Work Act 2009, with Ms Aquino claiming that she was terminated without just cause or excuse. The nature of the dispute involved the interpretation and application of the Act’s provisions related to unfair dismissal, focusing on the legitimacy of the reasons for termination and the procedural fairness afforded to Ms Aquino.

The court was tasked with determining whether the dismissal was harsh, unjust, or unreasonable, as defined by the Act. This involved assessing the adequacy of the reasons provided for the termination, the fairness of the process leading to the dismissal, and whether the employer complied with procedural requirements. The primary issue was whether Ms Aquino's dismissal was justified, given the circumstances and evidence presented by both parties.

The Commission found that the employer had failed to provide adequate reasons for the dismissal, which were neither fair nor justifiable. Furthermore, the process leading to the dismissal did not meet the standards of procedural fairness. The employer's actions were deemed to contravene the principles of natural justice and the requirements of the Act. Consequently, the Commission determined that the dismissal was unfair and ordered reinstatement and compensation for Ms Aquino.

Ms Kariss Aquino v Allied Forklifts Pty Ltd T/A Allied Forklifts 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