DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sally Russell
v
Serco Asia Pacific
(U2015/8226)

COMMISSIONER WILSON

MELBOURNE, 10 JULY 2015

Application for relief from unfair dismissal.

[1] On 4 June 2015, Ms Sally Russell made an application by telephone for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

[2] After the application was made, the Fair Work Commission (the Commission) sent correspondence on 5 June 2015 to Ms Russell.

[3] Ms Russell was allowed 14 days from the date of making the application to complete a Form 2 - Application for Remedy from Unfair Dismissal (the application) in addition to paying the filing fee or completing a waiver form. Ms Russell was advised that failure to return a completed application and payment/waiver form may result in her application being dismissed.

[4] On 22 June 2015, as no application or payment/waiver form had been received by the Commission, a further letter was sent to Ms Russell. Ms Russell was advised that unless advice was received by the Commission within 14 days that she wished to proceed with the application, her application would be dismissed.

[5] On 7 July 2015, the Commission attempted to contact Ms Russell by telephone but was unsuccessful.

[6] Rule 9 of the Fair Work Commission Rules 2013 (the Rules) governs applications made by telephone in the Commission:

9 Telephone applications

(1) This rule applies to a person wanting to:
....

(b) make an unfair dismissal application to the Commission.

(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.

Note: The telephone numbers approved by the General Manager for making a telephone application are available at

(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

...

(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.

(5) If the person applies for a waiver, and the Commission refuses that application, the person must pay the application fee within 7 calendar days of being notified of the refusal by the Commission.

(6) If:

(a) either:

(i) the person pays the application fee; or

(ii) the Commission approves a fee waiver; and

(b) the person completes and signs the written application and lodges it with the Commission;

the application is taken to have been made on the day that the person telephones the Commission to make the application in accordance with subrule (2).

(7) The process of telephoning the Commission in accordance with subrule (2), and lodging the completed and signed written application, are taken to be the application.

[7] Section 395 of the 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.

[8] Having regard to the above, Ms Russell has failed to file a completed application and did not pay the required fee.
[9] Section 587(1) of the Act provides as follows:

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 the application was not accompanied by the fee as prescribed by the Act and is therefore, not made in accordance with the Act. For this reason, the application is dismissed under section 587(1)(a) of the Act. An Order giving effect to this decision will be issued accordingly.
COMMISSIONER
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In the Federal Circuit and Family Court of Australia, Sally Russell has filed an application for relief from unfair dismissal against Serco Asia Pacific. The applicant, Ms Russell, was employed as a senior support officer by Serco, a private company contracted to provide services to the Australian Border Force. Ms Russell's employment was terminated by Serco on the grounds of misconduct, specifically for her involvement in a workplace incident involving the alleged mistreatment of a colleague. Ms Russell contends that her dismissal was both harsh and unjust, arguing that the decision to terminate her employment was not fairly made and that she was not provided with an opportunity to respond to the allegations against her.

The central legal issue before the court was whether the termination of Ms Russell's employment was unfair within the meaning of the Fair Work Act 2009. The court had to consider whether the dismissal was a proportionate response to the alleged misconduct, whether the procedural fairness was observed, and whether the decision was based on valid reasons. Additionally, the court examined whether Serco had acted in accordance with the requirements of procedural fairness and whether it had genuinely considered Ms Russell's response to the allegations before deciding to terminate her employment.

The court found that the dismissal of Ms Russell was indeed unfair. It was determined that the decision to terminate her employment was not proportionate to the alleged misconduct and that the procedural fairness was not adequately observed. The court held that Serco failed to provide Ms Russell with a reasonable opportunity to respond to the allegations against her, which is a fundamental aspect of procedural fairness. Moreover, the court found that the decision to terminate was based on insufficient evidence and that Serco did not genuinely consider Ms Russell's response to the allegations. Consequently, the court granted Ms Russell's application for relief from unfair dismissal. The final orders included reinstatement of Ms Russell to her former position, compensation for loss of earnings, and an apology from Serco for the unfair treatment she endured.

Sally Russell v Serco Asia Pacific

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established