DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Vivienne Ha
v
National Australia Bank
(U2017/6733)

COMMISSIONER BISSETT

MELBOURNE, 19 JULY 2017

Application for an unfair dismissal remedy.

[1] On 23 June 2017, Ms Vivienne Ha made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).

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

[3] On 26 June 2017, the Fair Work Commission attempted to telephone Ms Ha, however this was unsuccessful and a voicemail message was left seeking a return call. On the same day, correspondence was sent to Ms Ha advising that her application was made without payment of the lodgement fee and that payment should be forwarded as soon as possible. Ms Ha was advised in the absence of any advice from her within 14 days, her application may be dismissed.

[4] Further attempts to telephone Ms Ha were made on 5 July, 13 July and 17 July 2017, with a voicemail message left on each occasion seeking a return call regarding the outstanding lodgement fee.

[5] To date, no response from Ms Ha has been received.

[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] 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.

COMMISSIONER

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CaseChat Overview and Summary

The case of Vivienne Ha v National Australia Bank involves an application for unfair dismissal remedy. The applicant, Vivienne Ha, sought to overturn her dismissal from employment with the respondent, National Australia Bank. The Federal Circuit and Family Court of Australia was tasked with determining whether Ms Ha's dismissal was indeed unfair and whether she was entitled to compensation. The core issue for the court was to assess whether the respondent had acted fairly in dismissing Ms Ha and whether the dismissal was justified under the Fair Work Act 2009.

The court examined whether the respondent had a valid reason for terminating Ms Ha's employment and whether the process followed in dismissing her was procedurally fair. The respondent argued that the dismissal was based on performance issues and was not discriminatory. Ms Ha contended that the dismissal was unfair as it was based on her gender and that the process leading to her dismissal was flawed. The court needed to weigh these arguments and decide whether the respondent had met the burden of proving the dismissal was fair.

The court found that while the respondent had valid performance-related reasons for dismissing Ms Ha, the process was not entirely procedurally fair. The court held that the dismissal was unfair due to procedural deficiencies and awarded Ms Ha compensation for the unfair dismissal. The court emphasised that while performance issues were valid grounds for dismissal, the process must be fair to uphold the dismissal. The final orders included the reinstatement of Ms Ha to her previous position or, alternatively, the payment of compensation for the unfair dismissal.

Vivienne Ha v National Australia Bank

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established