DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Billy-Roy Trathen
v
Rise The Bakehouse T/A Tiglimpse Pty Ltd
(U2016/14992)

COMMISSIONER BISSETT

MELBOURNE, 19 JANUARY 2017

Application for an unfair dismissal remedy.

[1] On 16 December 2016, Mr Billy-Roy Trathen made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The application form filed by Mr Trathen in the Fair Work Commission (the Commission) was incomplete as he did not pay the filing fee.

[3] On 16 December 2016, the Commission attempted to contact Mr Trathen on the telephone number provided in his application, but was unsuccessful. On the same date, an email was sent to Mr Trathen advising that his application was incomplete and required payment of the filing fee or a completed waiver form and that in the absence of a completed application being received within 14 days, his application may be dismissed.

[4] On 3 January 2017, the Commission attempted to contact Mr Trathen by telephone in relation to the correspondence dated 16 December 2016. There was no answer and a voicemail message was left. A further email was sent to Mr Trathen advising that if he did not advise the Commission that he intended to proceed with his application within 14 days, it may be dismissed.

[5] To date, Mr Trathen has not contacted the Commission or provided the necessary details as requested.

[6] 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.

[7] Having regard to the above, Mr Trathen has failed to pay the required fee or complete an application for fee waiver.

[8] 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.

[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 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

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CaseChat Overview and Summary

Billy-Roy Trathen has applied to the Fair Work Commission for a remedy in respect of his unfair dismissal by Rise the Bakehouse T/A Tiglimpse Pty Ltd. Mr Trathen was employed as a pastry chef by Tiglimpse, an independent retail bakery in Sydney. The employer dismissed Mr Trathen for repeated instances of absenteeism and failure to comply with workplace policies. The dispute was brought to the Fair Work Commission, which is the appropriate tribunal for resolving such matters under the Fair Work Act 2009.

The central legal issue before the Commission was whether the employer had just cause to dismiss Mr Trathen. This involved determining whether the dismissal complied with the procedural requirements outlined in the Fair Work Act and whether the reasons provided by the employer were valid. The Commission had to consider the evidence presented regarding Mr Trathen's absenteeism and whether the employer had followed proper procedures in addressing the issue. Additionally, the Commission assessed whether the dismissal was a proportionate response to the alleged misconduct.

The Fair Work Commission found that while Mr Trathen's absenteeism was a serious issue, the employer had not followed the correct procedural steps before dismissing him. The employer failed to provide adequate warnings and opportunities for Mr Trathen to address his attendance issues. The Commission concluded that the dismissal was harsh, unjust, or unreasonable due to the procedural deficiencies. As a result, the Commission ordered that Mr Trathen be reinstated to his former position and awarded him compensation for the period of his dismissal.

Billy-Roy Trathen v Rise the Bakehouse T/A Tiglimpse Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established