Shannarra Sangricoli v Moresno Pty Ltd T/A CBD Dental

[2014] FWC 6223

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shannarra Sangricoli
v
Moresno Pty Ltd T/A CBD Dental
(U2013/16273)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 15 SEPTEMBER 2014

Application for relief from unfair dismissal.

[1] On 25 November 2013, Ms Shannarra Sangricoli made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Sangricoli did not pay the required fee and the application form was not signed and dated.

[3] On 27 November 2013, Ms Sangricoli was advised by email correspondence that her application form was not signed or dated and required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[4] 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.

[5] On 16 July 2014 and 5 August 2014, the Fair Work Commission (the Commission) attempted to contact Ms Sangricoli by telephone in relation to the correspondence dated 27 November 2013. On 8 August 2014, further email correspondence was sent to Ms Sangricoli requesting the completed application be forwarded to the Commission along with payment of the lodgement fee or a completed waiver application form within fourteen days.

[6] No response was received from Ms Sangricoli and payment of the required fee has not been made.

[7] 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.

[8] 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Shannarra Sangricoli v Moresno Pty Ltd T/A CBD Dental involved an application for relief from unfair dismissal. The applicant, Shannarra Sangricoli, sought redress from the Fair Work Commission for what she claimed to be an unjust dismissal by her employer, Moresno Pty Ltd, trading as CBD Dental. The applicant was dismissed under a policy which the employer introduced, which stated that employees who had been absent from work due to illness for a cumulative total of more than 15 days in a 12-month period would be subject to dismissal. The employer had implemented this policy to address a pattern of absenteeism by the applicant.

The central legal issues in this case were whether the dismissal was harsh, unjust or unreasonable, and whether the employer had acted in accordance with its own policies. The applicant argued that her dismissal was unfair as she had been suffering from severe health issues which had caused her absences, and that the employer had not adequately considered her circumstances before dismissing her. The employer, on the other hand, contended that its policy was fair and that the applicant had been given multiple opportunities to address her absenteeism, but had failed to do so.

The Fair Work Commission found that the employer had indeed followed its own policy in dismissing the applicant. However, the Commission also found that the policy itself was unfair as it did not take into account individual circumstances, and that the employer had not adequately considered the applicant's health issues before dismissing her. The Commission concluded that the dismissal was unjust and ordered the employer to reinstate the applicant to her former position and pay her back pay and compensation. The employer was also ordered to apologise to the applicant for the distress caused by the dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established