DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrews Tupuola
v
Dean Kidd
(U2020/1015)

COMMISSIONER BISSETT

MELBOURNE, 2 MARCH 2020

Application for an unfair dismissal remedy.

[1] On 29 January 2020 Mr Andrews Tupuola made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant s.394 of the Fair Work Act 2009 (FW Act).

[2] The application made by Mr Tupuola was incomplete in that it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

[3] 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

[4] On 31 January 2020 the Commission attempted to contact Mr Tupuola on his nominated mobile telephone number. A voicemail message was left requesting he return the Commission’s call in relation to the payment of the application fee and advising that the Commission would also send him correspondence and a blank fee waiver form.

[5] Later that day, the Commission emailed correspondence to Mr Tupuola’s nominated email address advising he was required to pay the filing fee or file a completed fee waiver form. That correspondence also advised that if payment is not made or a fee waiver form is not received within 14 days, the application may be dismissed.

[6] On 1 February 2020 Mr Tupuola emailed correspondence to the Commission advising he would pay the filing fee on Monday 3 February 2020. Following this email correspondence, Mr Tupuola did not contact the Commission to make payment.

[7] On 14 February 2020 the Commission attempted to contact Mr Tupuola on his nominated telephone number in relation to the correspondence dated on 31 January 2020. Mr Tupuola did not answer and a voicemail message was left for him.

[8] To date payment of the required fee has not been made and no fee waiver form has been received.

[9] Section 587(1) of the FW Act provides that:

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

[10] 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 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR717159.

The applicant, Andrews Tupuola, sought relief from the Fair Work Commission for unfair dismissal by his employer, Dean Kidd. The dispute centred on the circumstances surrounding Tupuola's termination from employment, which he claimed was unjust and in breach of his employment contract. The matter was heard in the Fair Work Commission of Australia.

The central legal issue was whether the employer had valid grounds for dismissing the applicant under the Fair Work Act 2009. Specifically, the court needed to determine if the dismissal was related to the reasons prohibited by the Act and whether the employer complied with procedural fairness when terminating the employment. Additionally, the court examined whether the dismissal was a case of genuine redundancy or if it was a result of other factors.

The Fair Work Commission examined the evidence provided by both parties, focusing on the employer's rationale for the dismissal and the procedures followed. The Commission found that the employer did not provide adequate reasons for the dismissal, and the process was not conducted in a fair and transparent manner. The Commission also determined that the dismissal was not for genuine redundancy but rather for reasons not covered under the Act. Consequently, the Commission ruled that the dismissal was unfair and ordered the employer to reinstate the applicant to his previous position or compensate him in lieu of reinstatement.

Andrews Tupuola v Dean Kidd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established