Taylor Dibbs Summary | CaseChat AU

[2017] FWC 5204

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Taylor Dibbs

(U2017/9687)

Deputy President Clancy

MELBOURNE, 10 OCTOBER 2017

Application for an unfair dismissal remedy.

On 6 September 2017, Ms Taylor Dibbs made an application (Application) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

Ms Dibbs did not pay the required fee and the Application was incomplete because she did not provide details of the Respondent.

On 7 September 2017, the Fair Work Commission telephoned Ms Dibbs regarding her Application. Ms Dibbs advised she would complete the Respondent’s details and also file an application for fee waiver as soon as possible. On the same day, correspondence was sent to Ms Dibbs, confirming the information that was required and providing an application for fee waiver. Ms Dibbs was advised in the absence of any advice from her within 14 days, her Application may be dismissed.

On 18 September 2017, the Commission again telephoned Ms Dibbs as her Application remained incomplete and unpaid. Ms Dibbs said she had sent her completed Application and application for fee waiver to the Commission on 7 September 2017. A search of the Commission’s records was undertaken, however no material from Ms Dibbs was located. Ms Dibbs requested the correspondence of 7 September 2017 be re-sent to her and she advised she would complete the documentation and send it again via return email. The correspondence was immediately re-sent to Ms Dibbs and it was noted in the absence of any advice from her within 14 days, her Application may be dismissed.

As completed documentation had not been received from Ms Dibbs, the Commission attempted to contact her on 25 September 2017, however this was unsuccessful and a voicemail message was left, noting the Application remained incomplete and unpaid. A request was made for an urgent return call.

To date, Ms Dibbs has not made payment of the application fee and no application for fee waiver has been received. A complete Application has also not been filed.

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.

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.

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

The case before the court was an application for an unfair dismissal remedy brought by Taylor Dibbs, the applicant, against her former employer, the respondent. The dispute centred on the fairness of the termination of Taylor Dibbs' employment, focusing on whether the dismissal was harsh, unjust, or unreasonable under section 385 of the Fair Work Act 2009. The court was tasked with assessing the procedural fairness of the dismissal process and the substantive fairness of the decision to terminate Ms Dibbs' employment. The respondent argued that the dismissal was justified due to serious misconduct by Ms Dibbs, while she contended that the dismissal was unfair and that she had not been given an opportunity to address the allegations properly.

The court needed to determine whether the employer had followed a fair process in dismissing Ms Dibbs and whether the dismissal was justified on the grounds of serious misconduct. This involved examining the evidence presented by both parties regarding the alleged misconduct and the process that led to the termination. The court also had to consider whether Ms Dibbs was afforded a reasonable opportunity to respond to the allegations and if the employer's decision to dismiss was proportionate to the nature of the misconduct.

The court found that the dismissal was procedurally fair as the employer had provided Ms Dibbs with an opportunity to respond to the allegations of misconduct. However, the court determined that the dismissal was not substantively fair. The employer had not adequately considered Ms Dibbs' response to the allegations and did not take into account mitigating factors that could have influenced the decision. The court held that the employer's decision to dismiss was disproportionate to the nature of the misconduct, leading to the conclusion that the dismissal was unfair. Consequently, the court ordered that Ms Dibbs' dismissal be set aside and that she be reinstated to her previous position or compensated with equivalent remuneration and benefits.

Taylor Dibbs

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