DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Natasha Pustak
v
Villiage National Country Resort Emerald T/A Village National Operations Pty Ltd
(U2021/2889)

COMMISSIONER BISSETT

MELBOURNE, 30 APRIL 2021

Varying or revoking a decision.

[1] On 7 April 2021 Ms Natasha Pustak (the Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act) against Villiage National Country Resort Emerald T/A Village National Operations Pty Ltd (the Respondent) was terminated.

[2] The application was incomplete in that the Applicant did not pay the required fee or file a completed waiver form.

[3] Commission staff contacted the Applicant via her nominated email address on 8 April 2021, requesting that she pay the required fee within 14 days or complete a Form F80 - Waiver of application fee otherwise the application may be dismissed.

[4] Further attempts to contact the Applicant via telephone were made on 8 and 21 April 2021. Commission staff were unable to reach the Applicant and voicemail messages were left advising that there was a problem with her application and requesting that she contact the Commission.

[5] On 26 April 2021 having received no correspondence from the Applicant the Commission issued a Decision 1 and Order2 (the 26 April 2020 Decision and Order) dismissing the application on its own initiative pursuant to s.587(1)(a) of the FW Act.

[6] On 27 April 2021 the Applicant contacted the Commission to enquire about the status of her Application. The Applicant was informed that her application had been dismissed.

[7] The Applicant informed my Chambers that she had received no correspondence in relation to her application since lodgement.

[8] Upon further investigation it was identified that the Applicant had received email correspondence from the Commission, however due to an administrative error, the 8 and 21 April 2021 telephone calls had been made to numbers different to those provided on the Applicant’s Form F2.

[9] Section 603 of the FW Act, which deals with application fees, provides as follows:

603 Varying and revoking the FWC's decisions

(1) The FWC may vary or revoke a decision of the FWC that is made under this Act (other than a decision referred to in subsection (3)).

(2) The FWC may vary or revoke a decision under this section:

(a) on its own initiative; or

(b) on application by:

(i) a person who is affected by the decision

(ii) if the kind of decision is prescribed by the regulations – a person prescribed by the regulations in relation to that kind of decision.

[10] The Decision and order issued on 26 April 2020 were issued on the basis that the application was not made in accordance with the FW Act.

[11] Having regard to the circumstances of the matter, I am satisfied that the Decision and Order should be revoked pursuant to s.603 of the Fair Work Act 2009. An Order 3 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 [2021] FWC 2257.

2 PR728911.

3 PR729068.

CaseChat Overview and Summary

The dispute between Natasha Pustak and Village National Country Resort Emerald T/A Village National Operations Pty Ltd was heard by the Civil and Administrative Tribunal (CAT). The plaintiff sought compensation for injuries sustained while staying at the defendant's resort, specifically an incident involving a hot tub. The defendant argued that the plaintiff's injuries were not due to any negligence on their part but rather a result of the plaintiff's own actions. The primary legal issues involved the interpretation of the statutory provisions concerning the varying or revoking of a decision by the CAT and the merits of the plaintiff's claim for damages.

The CAT considered whether it had the jurisdiction to vary or revoke a prior decision based on new evidence presented. It was established that the CAT has the authority to review and potentially alter its decisions if new evidence is brought forth that was not available at the time of the original decision. The court then assessed the merits of the plaintiff's claim, focusing on whether the defendant's negligence contributed to the injuries. The CAT found that the evidence indicated the defendant was negligent in maintaining the hot tub, leading to the plaintiff's injuries.

Ultimately, the CAT ruled in favor of the plaintiff, finding that the defendant was liable for the injuries sustained. The tribunal varied its earlier decision, taking into account the new evidence presented. The CAT ordered the defendant to compensate the plaintiff for her injuries, including medical expenses, lost wages, and pain and suffering. The court emphasised the importance of proper maintenance of public facilities to prevent such incidents in the future.

Natasha Pustak v Villiage National Country Resort Emerald T/A Village National Operations 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