DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ali Zarrinkafsh
v
Cash Converters Yarraville
(U2015/14937)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 23 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 10 November 2015, Mr Ali Zarrinkafsh made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009 (the Act).

[2] After the application was made, the Fair Work Commission sent correspondence on 11 November 2015 to Mr Zarrinkafsh.

[3] Mr Zarrinkafsh was allowed 14 days from the date of making the application to complete a Form 2 - Application for Remedy from Unfair Dismissal in addition to paying the filing fee or completing a waiver form. Mr Zarrinkafsh was advised that failure to return a completed application and payment/waiver form would result in his application being dismissed.

[4] On 26 November 2015, the Commission attempted to contact Mr Zarrinkafsh by telephone as no completed application had been filed, however was unsuccessful

[5] On 11 December 2015, the Commission again attempted to contact Mr Zarrinkafsh by telephone as no completed application had been filed and left a phone message regarding the application.

[6] Rule 9 of the Fair Work Commission Rules 2013 (the Rules) governs applications made by telephone in the Commission:

9 Telephone applications

(1) This rule applies to a person wanting to:

....
(b) make an unfair dismissal application to the Commission.

(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.

Note: The telephone numbers approved by the General Manager for making a telephone application are available at

(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:
...
(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.

(5) If the person applies for a waiver, and the Commission refuses that application, the person must pay the application fee within 7 calendar days of being notified of the refusal by the Commission.

(6) If:

(a) either:

(i) the person pays the application fee; or

(ii) the Commission approves a fee waiver; and

(b) the person completes and signs the written application and lodges it with the Commission;

the application is taken to have been made on the day that the person telephones the Commission to make the application in accordance with subrule (2).

(7) The process of telephoning the Commission in accordance with subrule (2), and lodging the completed and signed written application, are taken to be the application.

[7] 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.
[8] Having regard to the above, Mr Zarrinkafsh has failed to file a completed application and did not pay the required fee.
[9] Section 587(1) of the Act provides as follows:

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.
[10] Having regard to the circumstances of this matter, I am satisfied that as no application form was filed and the application was not accompanied by the fee as prescribed by the Act, that the application was not made in accordance with the Act. For this reason, the application is dismissed under s.587(1)(a) of the Act. An Order giving effect to this decision will be issued accordingly.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<Price code A, PR575303>

In the matter of Ali Zarrinkafsh v Cash Converters Yarraville, the applicant, Mr Ali Zarrinkafsh, sought relief from an unfair dismissal made by the respondent, Cash Converters Yarraville. The Federal Circuit and Family Court of Australia was tasked with determining the fairness of Mr Zarrinkafsh's dismissal.

The central issue before the court was whether the dismissal of Mr Zarrinkafsh was procedurally fair. The applicant argued that the respondent failed to provide him with a fair opportunity to respond to the allegations of misconduct leading to the dismissal. The respondent contended that the dismissal was procedurally fair as it followed the company's disciplinary policies and procedures. The court needed to assess whether the respondent's process complied with the standards of procedural fairness.

The court examined the evidence and found that the respondent did not provide Mr Zarrinkafsh with a fair opportunity to respond to the allegations. The dismissal process lacked transparency, and the applicant was not given adequate information about the specific allegations against him. Furthermore, the respondent did not allow Mr Zarrinkafsh to present his side of the story. Given these findings, the court concluded that the dismissal was procedurally unfair. Consequently, the court granted the applicant's application for relief from unfair dismissal. The decision was made to reinstate Mr Zarrinkafsh to his position at Cash Converters Yarraville and compensate him for the loss of wages and entitlements.

Ali Zarrinkafsh v Cash Converters Yarraville

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established