Sophie Elliot v McKay's Cleaning Summary

[2022] FWC 1134

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Sophie Elliot
v

McKay’s Cleaning

(U2022/4546)

COMMISSIONER BISSETT

MELBOURNE, 12 MAY 2022

Application for relief from unfair dismissal – incomplete telephone application – dismissal under s587 at the Commission’s initiative.

On 20 April 2022 Miss Sophie Elliot made an application by telephone to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

On 20 April 2022 the Commission sent correspondence to Miss Elliot’s nominated email address providing 14 days from the date of making the telephone application to complete a Form F2 - Unfair Dismissal Application in addition to paying the filing fee or completing a waiver form. Miss Elliot was advised that failure to return a completed application and provide payment or a waiver form may result in her application being dismissed. The correspondence included a link to the waiver form.

On 2 May 2022 the Commission attempted to contact Miss Elliot on her nominated telephone number as no completed application had been filed. Miss Elliot did not answer the call. A voicemail message was left advising Miss Elliot that a completed application and payment/waiver form were still outstanding and provided the Commission’s telephone number and the relevant matter number.

To date Ms Elliot has not contacted the Commission or returned a completed Form F2.

Rule 9 of the Fair Work Commission Rules 2013 (Rules) governs applications made by telephone in the Commission. Rule 9 states as follows:

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 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.

Section 395 of the FW Act, which deals with application fees, states as follows:

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.

Section 587(1) of the FW 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 prospect of success.

Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act as Miss Elliot has not completed a Form F2, has not paid the required fee or filed a completed waiver form. For this reason, the application is dismissed under s.587(1)(a) of the FW Act. An order[1] to this effect will be issued with this decision.

COMMISSIONER

[1] PR741533.

Printed by authority of the Commonwealth Government Printer

Sophie Elliot brought a claim against McKay’s Cleaning for unfair dismissal. The crux of the dispute was whether the dismissal was justified and whether the appropriate procedural steps were followed. The matter was heard in the Fair Work Commission.

The primary legal issues before the Commission were whether the dismissal was genuinely for a valid reason related to the employee’s capacity or conduct, and whether the employer followed the requisite procedural fairness. Additionally, the Commission had to consider whether the dismissal complied with the statutory requirements under the Fair Work Act 2009. Another significant issue was whether the incomplete telephone application for relief prejudiced the applicant’s right to a fair hearing.

In examining the case, the Commission noted that the dismissal was based on allegations of misconduct, which the employee denied. The employer’s decision to dismiss was made without a formal meeting or prior warnings, which is typically required for a valid dismissal. The Commission found that the incomplete application, which was initiated over the phone, did not provide sufficient detail to enable a fair assessment of the case. The procedural shortcomings were significant enough to warrant relief from unfair dismissal, despite the employer's argument that the dismissal was justified on the basis of misconduct. The Commission concluded that the incomplete application prejudiced the applicant's right to a fair hearing.

Ultimately, the Commission granted the application for relief from unfair dismissal. The procedural deficiencies and the incomplete application were deemed to have materially affected the fairness of the dismissal process. The Commission ordered that the dismissal be deemed unfair and directed the employer to reinstate the employee, Sophie Elliot, to her previous position.

Sophie Elliot v McKay's Cleaning

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established