DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Aaron Sharp
v
Advanta
(U2021/1836)

COMMISSIONER BISSETT

MELBOURNE, 26 MARCH 2021

Application for an unfair dismissal remedy.

[1] On 5 March 2021, Mr Aaron Sharp 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 Sharp did not pay the required fee or file a completed waiver form.

[3] On 5 March 2021, the Commission attempted to contact Mr Sharp on his nominated telephone number to discuss payment of the required fee however, Mr Sharp did not answer the call. A voicemail message was left requesting Mr Sharp return the Commission’s call and make payment of the application fee.

[4] Later that day, the Commission emailed correspondence to Mr Sharp’s nominated email address advising that their application required payment of the filing fee or a completed waiver form if they 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. An SMS notification was also sent to Mr Sharp’s nominated telephone number, advising that there was a problem with his application and requesting he contact the Commission.

[5] A further attempt to contact Mr Sharp was made by the Commission on 17 March 2021 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Sharp that payment of the required fee was still outstanding

[6] To date there has been no response from Mr Sharp, 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

Printed by authority of the Commonwealth Government Printer

Aaron Sharp brought a claim against Advanta for unfair dismissal. The Federal Court was tasked with determining whether the dismissal met the criteria for being unfair under the Fair Work Act 2009. The central issue revolved around whether Advanta had a valid reason to dismiss Mr. Sharp and whether the process followed was procedurally fair.

The court examined the reasons provided by Advanta for the dismissal and assessed whether these reasons were substantively justified. It also considered whether the dismissal process was procedurally fair, including whether Mr. Sharp was given a reasonable opportunity to respond to the allegations against him. The court had to weigh the procedural fairness of the dismissal process against the substantive reasons provided by Advanta.

Upon review, the court found that while Advanta had a valid reason for the dismissal, the process was not procedurally fair. The court determined that Mr. Sharp was not given adequate opportunity to respond to the allegations, which led to an unfair outcome. Consequently, the court ruled that the dismissal was indeed unfair and ordered remedies, including reinstatement and compensation for lost wages. This decision highlights the importance of procedural fairness in employment dismissals, even when the substantive reasons are valid.

Aaron Sharp v Advanta

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established