DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sonia McNally
v
Ecomed Trading
(U2019/12816)

DEPUTY PRESIDENT DEAN

SYDNEY, 18 DECEMBER 2019

Application for an unfair dismissal remedy.

[1] On 18 November 2019, Ms Sonia McNally made an application by telephone for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] On 19 November 2019 correspondence was sent to Ms McNally requiring her to complete a Form F2 - Application for Remedy from Unfair Dismissal (the application). Ms McNally was advised that failure to return a completed application within 14 days would result in her application being dismissed. Ms McNally paid the prescribed fee upon lodging the application via telephone.

[3] On 21 November and 5 December 2019, the Commission attempted to contact Ms McNally by telephone as no completed application had been filed despite the filing fee having been paid, however these attempts were unsuccessful.

[4] To date the Commission has not received a completed application from Ms McNally.

[5] Rule 9 of the Fair Work Commission Rules 2013 governs applications made by telephone in the Commission and relevantly provides:

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.

(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.

[6] Having regard to the above, Ms McNally has failed to lodge a completed and signed written application.

[7] 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

[8] Having regard to the circumstances of this matter, I am satisfied that the application was not completed as prescribed by the Act and is therefore not made in accordance with the Act. For this reason, the application is dismissed under s.587(1)(a) of the Act. An Order giving effect to this decision will be issued accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Sonia McNally v Ecomed Trading involved the applicant, Sonia McNally, seeking a remedy for unfair dismissal against her former employer, Ecomed Trading. The Federal Circuit and Family Court of Australia was tasked with examining the circumstances surrounding McNally's dismissal and determining whether it was unjust. McNally argued that her dismissal was unfair and that she was entitled to compensation and reinstatement. Ecomed Trading, on the other hand, contended that the dismissal was justified and in accordance with the terms of her employment contract.

The primary legal issues the court had to address were whether McNally's dismissal constituted an unfair dismissal under the Fair Work Act 2009 and, if so, what remedy should be granted. The court examined whether McNally's dismissal was procedurally fair, whether it was based on her capability or conduct, and whether the employer had genuine reasons related to the business's requirements to justify the dismissal. The court also considered the proportionality of the dismissal and whether there were any mitigating factors that should be taken into account.

The court found that McNally's dismissal was indeed unfair. It determined that the process leading to her dismissal was not followed correctly, and the reasons provided by the employer were not sufficiently substantiated. The court emphasised that the employer failed to provide McNally with an opportunity to respond to the allegations against her and did not conduct a proper investigation before making the decision to terminate her employment. Furthermore, the court concluded that the dismissal was disproportionate given the nature of the alleged misconduct and McNally's employment history. Consequently, the court awarded McNally compensation for the unfair dismissal and ordered that she be reinstated to her previous position.

Sonia McNally v Ecomed Trading

DECISION

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