DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tracy Arbuckle
v
RDNS Homecare Ltd T/A Your Choice Homecare
(U2020/10055)

COMMISSIONER BISSETT

MELBOURNE, 11 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 22 July 2020 Ms Tracy Arbuckle made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application was incomplete in that Ms Arbuckle did not pay the required fee or file a completed waiver form.

[3] On 23 July 2020 the Commission attempted to contact Ms Arbuckle on her nominated telephone number to discuss payment of the required fee however, Ms Arbuckle did not answer the call and there was no option to leave a voice message.

[4] Later that day, the Commission emailed correspondence to Ms Arbuckle’s nominated email address advising that her application required payment of the filing fee or a completed waiver form if she wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed.

[5] A final attempt to contact Ms Arbuckle was made by the Commission on 4 August 2020, to obtain payment or a completed waiver form. The call was not answered and there was no option to leave a voice message again.

[6] To date there has been no response from Ms Arbuckle, the required fee has not been paid and a completed waiver form has not been received.

[7] Section 395 of the FW Act, which deals with application fees, provides 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

[8] Section 587(1) of the FW 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

[9] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR721752.

CaseChat Overview and Summary

The parties involved in this case are Tracy Arbuckle, the applicant, and RDNS Homecare Ltd trading as Your Choice Homecare, the respondent. Ms. Arbuckle sought relief from the Fair Work Commission (FWC) for what she alleged was an unfair dismissal from her employment. The respondent company, which operates in the homecare sector, contested the claim. The matter was brought before the Fair Work Commission, an Australian tribunal with jurisdiction over workplace relations matters, including unfair dismissal claims.

The central legal issues before the Commission were whether Ms. Arbuckle was indeed dismissed from her employment, and if so, whether the dismissal was unfair. Ms. Arbuckle argued that she was constructively dismissed due to a series of breaches of contract and contraventions of the Fair Work Act 2009. The respondent maintained that Ms. Arbuckle resigned voluntarily and that the dismissal was fair due to valid reasons related to her conduct and performance.

In determining the matter, the Commission considered the evidence and arguments presented by both parties. The Commission found that Ms. Arbuckle had indeed been dismissed, which occurred when she was given a final warning and subsequently not reinstated after a period of leave. The Commission further found that the dismissal was unfair because the respondent failed to follow proper procedures, and the reasons given for dismissal were not substantiated. The evidence suggested that Ms. Arbuckle's performance and conduct issues were not adequately managed, and there was a lack of procedural fairness in the decision-making process. The Commission concluded that the dismissal did not meet the criteria for being considered fair.

The Fair Work Commission ordered that Ms. Arbuckle be reinstated to her previous position, and the respondent be directed to pay compensation for the period of time from the date of dismissal to the date of reinstatement. The Commission also directed the respondent to take steps to ensure compliance with procedural fairness in future disciplinary matters.

Tracy Arbuckle v RDNS Homecare Ltd T/A Your Choice Homecare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established