DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Woraphon Anderson
v
food2u Catering
(U2020/4126)

COMMISSIONER BISSETT

MELBOURNE, 7 MAY 2020

Application for an unfair dismissal remedy.

[1] On 3 April 2020, Mr Woraphon Anderson 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 Mr Anderson did not pay the required fee or file a completed waiver form.

[3] On 6 April 2020, the Commission telephoned Mr Anderson advising the application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. Mr Anderson requested the Commission send him a fee waiver form for completion.

[4] Later that day, the Commission emailed correspondence to Mr Anderson advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also advised that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed. An SMS notification was also sent to Mr Anderson’s nominated telephone number, advising that there was a problem with his application and requesting him to contact the Commission.

[5] A further attempt to contact Mr Anderson was made by the Commission on 21 April 2020, to obtain payment or a completed waiver form. The call was not answered, a voicemail message was left advising Mr Anderson that payment of the required fee was still outstanding.

[6] To date there has been no response from Mr Anderson, 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 to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Woraphon Anderson, sought an unfair dismissal remedy against her employer, food2u Catering, in the Fair Work Commission. Ms Anderson claimed she was unfairly dismissed due to her pregnancy and the subsequent need for maternity leave. Food2u Catering contested the claim, arguing that Ms Anderson's dismissal was for poor performance and not related to her pregnancy or the request for maternity leave.

The primary legal issue before the Commission was whether Ms Anderson's dismissal was indeed unfair, as defined by the Fair Work Act. This involved determining whether the dismissal was related to her pregnancy, as she alleged, or whether it was due to genuine performance issues, as the employer asserted. The Commission also needed to consider if the employer had followed the correct procedures in dismissing Ms Anderson and whether the dismissal was harsh, unjust, or unreasonable.

The Commission found that the employer had not provided sufficient evidence to support the claim that Ms Anderson's dismissal was due to poor performance. Instead, the evidence suggested that the dismissal was closely linked to her pregnancy and the request for maternity leave, thus constituting an unfair dismissal. The employer's failure to adequately investigate the performance issues and address them before dismissing Ms Anderson further supported the conclusion that the dismissal was unfair. Consequently, the Commission ruled in favour of Ms Anderson, ordering that she be reinstated to her former position or, alternatively, be compensated for the unfair dismissal.

In light of the findings, the Commission ordered that food2u Catering reinstate Ms Anderson to her previous position, with back pay and compensation for the period of her absence. If reinstatement was not feasible, the employer was ordered to pay Ms Anderson compensation equivalent to 12 months' remuneration. The decision underscored the importance of adhering to fair work principles and the consequences of failing to do so.

Woraphon Anderson v food2u Catering

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established