Andrew Bustin v Concrete Waterproofing Manufacturing T/A Xypex Australia

[2021] FWC 6514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Bustin
v
Concrete Waterproofing Manufacturing T/A Xypex Australia
(U2021/9806)

COMMISSIONER BISSETT

MELBOURNE, 6 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 5 November 2021 Mr Andrew Bustin 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). Mr Bustin alleged that he was unfairly dismissed by Concrete Waterproofing Manufacturing T/A Xypex Australia (the Respondent) on 15 October 2021. The application was lodged by telephone, and the required payment fee was received on this date.

[2] Later that day the Commission sent correspondence to Mr Bustin’s nominated email address providing 14 days from the date of that correspondence to complete a written Form F2 - Unfair Dismissal Application.

[3] On 18 November 2021, the Commission attempted to contact Mr Bustin on his nominated telephone number as a completed application had not been received. The Commission informed Mr Bustin that a completed application was still outstanding. Mr Bustin advised that he would submit a completed application by close of business the next day.

[4] Rule 9 of the Fair Work Commission Rules 2013 (Rules) governs applications made by telephone in the Commission. Rule 9 states as follows:

9Telephone 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 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.

[5] A written application as required by the Rules has not been received from Mr Bustin as at the time of this decision.

[6] Section 587(1) of the FW 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

[7] Having regard to the circumstances of this matter, I am satisfied that the application was not made in accordance with the FW Act as Mr Bustin has not submitted a completed Form F2. For this reason, the application is dismissed under s.587(1)(a) of the FW Act. An order 1 giving effect to this decision will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR736454.

The case involved Andrew Bustin, who sought an unfair dismissal remedy against Concrete Waterproofing Manufacturing, trading as Xypex Australia. The dispute arose from Bustin's employment termination and his subsequent application to the Fair Work Commission for remedy under the Fair Work Act 2009. The Commission was tasked with determining whether the dismissal was harsh, unjust, or unreasonable, and whether Bustin was entitled to reinstatement or compensation. The central legal issues before the Commission were whether the employer had just cause for termination and whether the process leading to the termination was fair and transparent. The Commission needed to assess the adequacy of the employer's reasons for dismissal, the fairness of the process, and whether Bustin's rights were appropriately considered.

The Commission carefully examined the employer's justification for termination, focusing on the alleged misconduct and whether the employer had followed a fair process. It assessed whether the employer provided adequate notice, an opportunity for the employee to respond, and whether the decision to terminate was based on appropriate grounds. The Commission also evaluated whether Bustin's dismissal was proportionate to the offence, considering the employer's policies and the severity of the misconduct. Ultimately, the Commission found that the employer's decision to terminate was unjust due to procedural deficiencies and a lack of sufficient cause, leading to the conclusion that the dismissal was harsh, unjust, or unreasonable.

As a result, the Fair Work Commission ruled in favour of Bustin, granting him reinstatement to his former position or, alternatively, compensation. The decision emphasised the importance of adhering to fair procedures and ensuring that dismissal decisions are based on just cause. The Commission's ruling highlighted the need for employers to provide clear, fair, and transparent processes when dealing with employee misconduct, ensuring that employees' rights are protected throughout the termination process. This case underscores the significance of procedural fairness in employment terminations and the potential consequences for employers who fail to meet these standards.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established