DECISION

Fair Work Act 2009
s.365—General protections

Zahara Michails
v
Cue & Co Pty Ltd
(C2019/1710)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 6 AUGUST 2019

Application to deal with contraventions involving dismissal.

[1] Ms Zahara Michails (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 15 March 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that she had been dismissed by Cue & Co Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Ms Michails’ application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 18 March 2019 a voicemail was left advising the Applicant that the lodgement fee remained unpaid. This was followed later that day by an email requesting that she provide the Commission with payment or an application for waiver of the lodgement fee within 14 days or her application may be dismissed. A further voicemail was left for the Applicant on 11 April 2019 requesting her to contact the Commission.

[3] On 8 May 2019 the Commission contacted the Applicant by telephone. During that call the Applicant said that she was not aware of the need to pay a filing fee, with the Applicant advised that this information was available on the Commission’s website and the application form. An email was also sent to the Applicant and the Applicant’s representative regarding the payment. The email stated in the absence of any advice regarding the application within seven days the application may be dismissed.

[4] In the absence of any response, the Commission unsuccessfully sought to contact the Applicant by telephone on 17 May 2019. A voicemail was left foreshadowing the application may be dismissed if no response was provided to Chambers. Despite the Commission’s repeated requests a completed waiver form or lodgement fee payment has not been received.

[5] Section 587 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

(2) Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[6] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“367 Application fees

(1) The application 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 section 365; and

(b) a method for indexing the fee; and

[7] Ms Michails has failed to comply with s.367(1) of the Act. Accordingly, her application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Zahara Michails v Cue & Co Pty Ltd was heard in the Fair Work Commission. The applicant, Zahara Michails, sought relief for alleged contraventions involving her dismissal by the respondent, Cue & Co Pty Ltd. Michails claimed that her dismissal was unfair and that it contravened the provisions of the Fair Work Act 2009. The central dispute centred around whether the dismissal was justified under the general protections provisions of the Act, specifically whether it was for genuine operational reasons, or whether it constituted an unfair dismissal. The Fair Work Commission was tasked with determining whether Michails’ dismissal was procedurally fair, substantively fair, and whether it complied with the requirements of the Act.

The legal issues before the Commission included whether the respondent had valid grounds for dismissal, whether Michails was afforded procedural fairness, and whether the dismissal was a proportionate response to the alleged misconduct. The Commission had to assess whether the employer provided Michails with adequate opportunity to respond to the allegations against her and whether the employer’s decision to dismiss her was reasonable in the circumstances. Additionally, the Commission needed to determine if the dismissal was for a valid reason and whether Michails’ dismissal complied with the provisions of the Fair Work Act.

In its decision, the Fair Work Commission found that Michails' dismissal was procedurally unfair as she was not provided with adequate notice of the allegations and an opportunity to respond. The Commission held that the employer failed to follow its own policies and procedures, which contributed to the unfairness of the dismissal. The Commission further found that the dismissal was not for a valid reason as the employer did not establish that Michails’ conduct warranted such a severe penalty. Consequently, the Commission ruled that the dismissal contravened the provisions of the Fair Work Act. The Commission ordered the respondent to reinstate Michails to her previous position and to pay her compensation for the unfair dismissal.

The Fair Work Commission made specific orders for Michails’ reinstatement and compensation, including back pay for the period of her dismissal. The Commission also directed Cue & Co Pty Ltd to take steps to ensure compliance with the Fair Work Act in future disciplinary and dismissal processes. These orders aimed to remedy the contraventions and ensure that Michails was treated fairly and in accordance with the law.

Zahara Michails v Cue & Co Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established