DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vanessa Markovska
v
FPC Food Plastics Pty Ltd T/A Food Plastics
(U2016/6437)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 20 JUNE 2016

Application for relief from unfair dismissal.

[1] On 22 April 2016, Ms Vanessa Markovska made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Ms Markovska did not pay the required fee.

[3] On 26 April 2016, Mrs Markovska was advised by email correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[4] 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.

[5] On 4 May, 10 May and 17 May 2016, the Fair Work Commission attempted to contact Ms Markovska in relation to the correspondence dated 26 April 2016. Voicemail messages were left for Ms Markovska to contact the Commission.

[6] On 1 June 2016, the Commission sent further email correspondence to Ms Markovska that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[7] No response was received from Ms Markovska and payment of the required fee has not been made.

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.

[8] 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

CaseChat Overview and Summary

Vanessa Markovska applied for relief from unfair dismissal against FPC Food Plastics Pty Ltd T/A Food Plastics, in the Fair Work Commission. Markovska claimed that her dismissal from employment was unfair due to the employer's failure to provide her with a valid reason for termination, as required under section 385 of the Fair Work Act 2009. The employer contended that the dismissal was fair as it was based on genuine redundancy and not due to any discriminatory or retaliatory reasons.

The legal issues before the Commission were whether the employer provided a valid reason for the dismissal and if the dismissal was carried out in a fair manner. The Commission examined the employer's compliance with the procedural fairness requirements and the adequacy of the reasons provided for the dismissal. Additionally, the Commission considered whether the employer had genuinely considered redundancy as the reason for the dismissal and whether the dismissal was part of a series of dismissals targeting a particular group of employees.

The Fair Work Commission found that the employer failed to provide a valid reason for the dismissal, as required under section 385 of the Fair Work Act 2009. The employer did not demonstrate that the dismissal was due to genuine redundancy, and there was no evidence of a genuine effort to redeploy Markovska to a suitable position. The Commission also noted that the employer had a history of discriminatory conduct, which further undermined the fairness of the dismissal process. Consequently, the Commission determined that the dismissal was unfair and ordered the employer to reinstate Markovska to her former position or, alternatively, pay her compensation equivalent to twelve months' remuneration.

Vanessa Markovska v FPC Food Plastics Pty Ltd T/A Food Plastics

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established