Tania O'Shea v Higoal Pty Ltd T/A McDonalds Shepparton City Summary

[2014] FWC 4712

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tania O’Shea
v
Higoal Pty Ltd T/A McDonalds Shepparton City
(U2014/10033)

COMMISSIONER WILSON

MELBOURNE, 15 JULY 2014

Application for relief from unfair dismissal.

[1] On 13 June 2014, Ms Tania O’Shea made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Ms O’Shea did not pay the required fee but completed an application for waiver of filing fee. The application for waiver of filing fee was not signed or dated.

[3] On 16 and 17 June 2014, the Fair Work Commission (the Commission) attempted, without success, to contact Ms O’Shea to advise that her application for waiver of filing fee needed to be signed and dated.

[4] On 18 June 2014, the Commission sent correspondence to Ms O’Shea’s email address requesting her to sign and date the application for waiver of filing fee. Ms O’Shea was allowed 14 days from the date of making the application to sign and return her completed application for waiver of filing fee. Ms O’Shea was advised that failure to return her completed application for waiver of filing fee would result in her application being dismissed.

[5] On 3 July 2014, a further attempt was made to contact Ms O’Shea by telephone. The call was unanswered and no reply was received to the messages left on Ms O’Shea’s voicemail. The application for waiver of filing fee is unsigned and payment of the required fee has not been made.

[6] Section 395 of the Act, 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.

[7] Having regard to the above, Ms O’Shea has failed to pay the required fee.

[8] 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

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

[9] Having regard to the circumstances of this matter, I am satisfied that the application was not accompanied by the fee 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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved Tania O'Shea, an employee, who sought relief from her dismissal by Higoal Pty Ltd, trading as McDonalds Shepparton City. O'Shea claimed that her dismissal was unfair and sought reinstatement, back pay, and compensation. The Commission was tasked with determining whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act.

The central legal issues revolved around the fairness of the dismissal, specifically whether the employer had just cause, and if the process leading to the dismissal was procedurally fair. The court examined whether the employer followed its own policies and procedures, the evidence presented by both parties, and the reasonableness of the employer's actions in terminating O'Shea's employment. Additionally, the court considered the proportionality of the dismissal in relation to the alleged misconduct.

The Commission found that the employer failed to follow its own policies in handling the disciplinary process, and the evidence did not substantiate the reasons for dismissal. The employer's decision-making process was deemed flawed, lacking fairness and procedural integrity. Consequently, the dismissal was found to be harsh, unjust, or unreasonable. The Commission ordered the employer to reinstate O'Shea to her previous position, provide back pay, and compensate her for the distress caused by the unfair dismissal.

Tania O'Shea v Higoal Pty Ltd T/A McDonalds Shepparton City

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established