Nadine Smarrelli v Melbourne Smile Clinic Summary

[2014] FWC 1251

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nadine Smarrelli
v
Melbourne Smile Clinic
(U2013/10863)

COMMISSIONER RYAN

MELBOURNE, 19 FEBRUARY 2014

Application for relief from unfair dismissal - application for costs.

[1] An application for an unfair dismissal remedy made by the Applicant was dismissed by the Commission on 13 December 2013, [2013] FWC 9821.

[2] The Respondent, through its solicitors Pearce Webster Dugdales, filed an Application for Costs, Form F6, on 17 February 2014. The Application seeks a costs order against the Applicant who was self represented in the matter. The Form F6 was accompanied by a covering letter from Pearce Webster Dugdales which contained the following:

“We note that more than 14 days has passed since the Decision of Commissioner Ryan, but humbly request that you consider the Application nevertheless.”

[3] The relevant legislative provisions of the Fair Work Act 2009 are as follows:

400A Costs orders against parties

(1) The FWC may make an order for costs against a party to a matter arising under this Part (the first party) for costs incurred by the other party to the matter if the FWC is satisfied that the first party caused those costs to be incurred because of an unreasonable act or omission of the first party in connection with the conduct or continuation of the matter.

(2) The FWC may make an order under subsection (1) only if the other party to the matter has applied for it in accordance with section 402.

(3) This section does not limit the FWC’s power to order costs under section 611.

402 Applications for costs orders

An application for an order for costs under section 611 in relation to a matter arising under this Part, or for costs under section 400A or 401, must be made within 14 days after:

(a) the FWC determines the matter; or

(b) the matter is discontinued.

[4] The plain language of s.402 requires that an application for a costs order in this matter be made within 14 days of the date that the Commission determined the matter, namely 13 December 2013.

[5] Unlike s.394(2) which provides the Commission with a qualified discretion to extend the time for the making of an application for an unfair dismissal remedy, S.402 does not permit the Commission to extend the time for the making of an application for a costs order.

[6] The application for a costs order in this matter is clearly well and truly outside the 14 day time limit specified in s.402 and therefore such application cannot be considered by the Commission. I therefore dismiss the application for a costs order in this matter.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Nadine Smarrelli, sought relief from an unfair dismissal from her employment at Melbourne Smile Clinic. Smarrelli claimed that her dismissal was unjust and contrary to the principles of procedural fairness. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the dismissal of Smarrelli was harsh, unjust, or unreasonable, and thus, unfair. Additionally, the court had to determine whether Melbourne Smile Clinic had just cause to dismiss Smarrelli or whether there was a failure to follow proper procedures.

In assessing these issues, the Commission considered the evidence provided by both parties, including the nature of the employment, the reasons for dismissal, and the procedural fairness observed during the termination process. The Commission found that the reasons provided by Melbourne Smile Clinic for dismissing Smarrelli were insufficient to justify the termination. Furthermore, it was determined that the clinic failed to follow proper procedures, leading to a breach of procedural fairness. Consequently, the dismissal was deemed unfair. Additionally, the Commission awarded costs to Smarrelli for the application, recognising the unjust nature of her dismissal and the effort required to seek relief.

Nadine Smarrelli v Melbourne Smile Clinic

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established