Andrew Paul v Southern Roofing Pty. Limited

[2018] FWC 469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Andrew Paul

Southern Roofing Pty. Limited

(U2017/13745)

COMMISSIONER BISSETT

MELBOURNE, 23 JANUARY 2018

Application for an unfair dismissal remedy.

On 22 December 2017, Mr Andrew Paul made an application (the Application) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act). The covering email to the Application, filed by his representative, said “[t]he Applicant may be contacted on his mobile telephone number to take payment of the filing fee by card.”

Also on 22 December 2017, the Fair Work Commission (the Commission) attempted to telephone Mr Paul in relation to payment of the filing fee, however the mobile number did not connect. The Commission subsequently telephoned Mr Paul’s representative who advised that it would attempt to contact Mr Paul and return the Commission’s call. Later that day, correspondence was sent to Mr Paul noting that if the application fee was not paid or an application to have the fee waived was not completed within 14 days, the Application may be dismissed.

As a completed waiver form had not been received or payment made, the Commission attempted to telephone Mr Paul on 5 January 2018, however the mobile number did not connect. On the same day, the Commission contacted Mr Paul’s representative via telephone and advised that if payment or a waiver form was not received within 7 days, the Application may be dismissed. Subsequently, the Commission was advised that another attempt would be made to contact Mr Paul regarding his unpaid application.

To date, Mr Paul has not made payment of the application fee and no application for fee waiver has been received.

Section 395, 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.

Section 587(1) 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

(c) the application has no reasonable prospects of success.

Having regard to the circumstances of this matter, I am satisfied that as the Application was not accompanied by the fee prescribed by the Act, the Application was not made in accordance with the Act. As such, the Application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Andrew Paul, sought an unfair dismissal remedy against his former employer, Southern Roofing Pty. Limited, before the Fair Work Commission. The dispute centred around Mr. Paul's termination of employment and whether it was justified, procedurally fair, or if there were grounds for the dismissal to be considered unfair. The Commission was tasked with examining the facts and circumstances surrounding the termination to determine the legitimacy of the employer's actions.

The legal issues before the Commission included whether the employer had a valid and sufficient reason to terminate Mr. Paul's employment, whether the employer followed appropriate procedures in dismissing him, and if the dismissal was harsh, unjust, or unreasonable. The Commission needed to assess the evidence provided by both parties and consider the relevant statutory provisions under the Fair Work Act 2009.

After considering the submissions and evidence, the Commission found that the employer had a valid reason for the dismissal, primarily due to Mr. Paul's conduct, which included a pattern of absenteeism and a failure to adhere to company policies. The Commission also determined that the employer had followed proper procedural steps in dismissing Mr. Paul, including providing warnings and opportunities for improvement. However, the Commission concluded that the dismissal was harsh due to the lack of a prior warning about the potential consequence of continued absenteeism. Consequently, the Commission ordered that the dismissal be unfair and required the employer to reinstate Mr. Paul to his former position or, alternatively, compensate him for the loss of remuneration.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established