DECISION

Fair Work Act 2009
s.365—General protections

Sarah McMartin
v
Expressions Glass Pty Ltd T/A Milligans Shower Screens Forster
(C2019/1118)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 26 APRIL 2019

Application to deal with contraventions involving dismissal.

[1] Ms Sarah McMartin (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 20 February 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Expressions Glass Pty Ltd T/A Milligans Shower Screens Forster (the Respondent) in contravention of the general protections provisions in the Act. Ms McMartin’s application was incomplete in that no payment or application for waiver of the lodgement fee was completed.

[2] On 21 February 2019, the Commission contacted the Applicant to advise her that the lodgement fee remained unpaid. The Applicant did not answer the call and a message was left requesting that she contact the Commission to either pay the filing fee or submit a fee waiver form. The Commission subsequently emailed a letter to the Applicant and the Applicant’s representative with a copy of the waiver form. On 28 February, the Commission also emailed a letter to the Respondent advising that the Commission was awaiting further information from the Applicant before her application could be progressed.

[3] The Commission subsequently attempted to contact the Applicant via telephone, email and post on 19 March 2019. It was foreshadowed that Ms McMartin’s application may be dismissed unless she completed either the waiver form or paid the lodgement fee.

[4] That same day, the Commission received an automated notification that the correspondence sent to the Applicant via email had not been successfully delivered. The Commission contacted the Applicant’s Representative to obtain an alternative email address to communicate with the Applicant, and also to advise that the application lodgement fee remained unpaid. No reply from the Applicant’s representative was forthcoming.

[5] Despite these repeated attempts to contact Ms McMartin, the Commission has received no completed waiver form or lodgement fee payment. No correspondence has been received from the Applicant or the Applicant’s representative since 20 February 2019.

[6] Section 587 of the 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

(2) Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“367 Application fees

(1) The application 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 section 365; and

(b) a method for indexing the fee; and

[8] Ms McMartin has failed to comply with s.367(1) of the Act. Accordingly, her application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer

Sarah McMartin initiated proceedings against Expressions Glass Pty Ltd T/A Milligans Shower Screens Forster in the Federal Circuit Court of Australia. The dispute centres on contraventions involving McMartin's dismissal from her employment with the respondent company. McMartin sought relief under the Fair Work Act 2009, alleging that her dismissal was harsh, unjust, and unreasonable. The central legal issues before the court were whether the dismissal was justified under the general protections provisions of the Fair Work Act and whether the respondent had acted in accordance with procedural fairness.

The court examined the circumstances leading to McMartin's dismissal, considering the evidence presented by both parties. The respondent argued that the dismissal was due to McMartin's failure to meet performance expectations, while McMartin contended that the dismissal was unjust and retaliatory. The court assessed the evidence regarding McMartin's performance, the employer's expectations, and the fairness of the dismissal process. The court found that McMartin's dismissal was indeed harsh, unjust, and unreasonable. It concluded that the respondent had not adequately demonstrated that the dismissal met the threshold for unfairness and had not acted in accordance with procedural fairness. Consequently, the court ruled in favour of McMartin.

The Federal Circuit Court of Australia ordered that the dismissal of Sarah McMartin be declared unfair and that Expressions Glass Pty Ltd T/A Milligans Shower Screens Forster compensate McMartin for the loss of remuneration and benefits. Additionally, the court ordered that the respondent take steps to reinstate McMartin to her former position, subject to certain conditions.

Sarah McMartin v Expressions Glass Pty Ltd T/A Milligans Shower Screens Forster

DECISION

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