DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Pamela Gallo Garcia
v
BB’s Beach break
(U2021/2296)

COMMISSIONER BISSETT

MELBOURNE, 14 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 19 March 2021, Miss Pamela Gallo Garcia 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).

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

[3] On 22 March 2021 the Commission attempted to contact Miss Gallo Garcia on her nominated telephone number to discuss payment of the required fee however Miss Gallo Garcia did not answer the call.

[4] Later that day, the Commission emailed correspondence to Miss Gallo Garcia’s nominated email address advising that their application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed. An SMS notification was also sent to Miss Gallo Garcia’s nominated telephone number, advising that there was a problem with her application and requested she contact the Commission.

[5] A final attempt to contact Miss Gallo Garcia was made by the Commission on 7 April 2021 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Miss Gallo Garcia that payment of the required fee was still outstanding.

[6] To date there has been no response from Miss Gallo Garcia, the required fee has not been paid and a completed waiver form has not been received.

[7] Section 395 of the FW Act, which deals with application fees, provides as follows:

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

[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

[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, therefore 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. An Order 1to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR728571

Pamela Gallo Garcia brought an application against BB’s Beach Break for an unfair dismissal remedy. The applicant was employed by the respondent as a bar attendant. She was dismissed from her employment following an incident that occurred while she was on duty. The applicant sought relief under the Fair Work Act 2009, arguing that her dismissal was harsh, unjust, or unreasonable. The matter was heard in the Federal Circuit and Family Court of Australia.

The central issue before the court was whether the dismissal of the applicant was justified under the circumstances. The court had to consider whether the respondent had valid reasons for dismissing the applicant and whether the dismissal was carried out in a fair manner. The applicant argued that she was not given a fair opportunity to respond to the allegations and that the dismissal was disproportionate to the nature of the incident. The respondent contended that the dismissal was warranted due to a breach of trust and that the applicant was provided with adequate opportunity to explain her actions.

The court found that the dismissal was not harsh, unjust, or unreasonable. The respondent had valid reasons for dismissing the applicant, as she breached the trust placed in her by failing to perform her duties properly. The court noted that the applicant was informed of the allegations against her and was given an opportunity to respond. The respondent followed a fair process in reaching the decision to dismiss the applicant. The court concluded that the dismissal was justified and did not constitute an unfair dismissal. The application was dismissed.

The court ordered that the applicant pay the respondent’s costs of the application, to be taxed on the ordinary basis if not agreed.

Pamela Gallo Garcia v BB's Beach break

DECISION

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