DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shalee Tull
v
Terry White Chemists Rockhampton Central
(U2015/8910)

COMMISSIONER WILSON

MELBOURNE, 23 JULY 2015

Application for relief from unfair dismissal.

[1] On 28 June 2015, Ms Shalee Tull made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Tull did not pay the required fee.

[3] On 30 June 2015, the Fair Work Commission left a telephone voice message for Ms Tull to contact the Commission as her application indicated she was only seeking her entitlements and wages.

[4] On 1 July 2015, Miss Tull was advised via email correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application. On the same date, the Commission attempted to contact Miss Tull and a voice messaged was left for Ms Tull to contact the Commission.

[5] Section 395, 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.

[6] On 14 July 2015, the Commission attempted to contact Miss Tull in relation to the correspondence dated 1 July 2015. A voice message was left requesting Miss Tull to contact the Commission to discuss her application and payment.

[7] No response was received from Miss Tull and payment of the required fee has not been made.

[8] Section 587(1) 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

(c) the application has no reasonable prospects of success.

[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 Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

Tull brought an application against her employer, Terry White Chemists Rockhampton Central, seeking relief from an unfair dismissal. The dispute centred around the validity of her termination, which occurred following allegations of misconduct and theft from the workplace. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether Tull's dismissal was justified under the provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine if the employer had reasonable grounds to believe that Tull was involved in the theft and if the termination was proportionate to the alleged misconduct. The employer argued that surveillance footage and Tull's inconsistent statements during an interview supported their belief in her involvement. Tull, on the other hand, maintained her innocence and claimed the dismissal was unjust and without proper investigation.

The Commission examined the evidence, including the surveillance footage and the employer's investigation process. It considered whether the employer acted reasonably in reaching its conclusion and whether the termination was fair given the circumstances. The Commission concluded that while the employer had a basis to suspect Tull's involvement, the investigation was insufficient to justify a dismissal. The employer failed to conduct a thorough investigation and did not provide Tull with an opportunity to respond adequately to the allegations. Consequently, the Commission found the dismissal to be unfair.

The Fair Work Commission ordered that Tull's dismissal be unfair and set aside the termination. It also mandated that Terry White Chemists Rockhampton Central reinstate Tull to her previous position or, alternatively, compensate her for the loss of earnings.

Shalee Tull v Terry White Chemists Rockhampton Central

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established