DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brent Magill
v
Dormakaba Australia Pty
(U2021/4683)

COMMISSIONER BISSETT

MELBOURNE, 6 JULY 2021

Application for an unfair dismissal remedy.

[1] On 30 May 2021 Mr Brent Magill (the Applicant) made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the FW Act). Mr Magill alleged that he was unfairly dismissed by Dormakaba Australia Pty (the Respondent).

[2] The application was incomplete in that Mr Magill did not pay the required fee or file a completed waiver form.

[3] On 1 June 2021 the Commission attempted to contact Mr Magill on his nominated telephone number to discuss payment of the required fee however, Mr Magill did not answer the call and there was no option to leave a voicemail message.

[4] Later that day, the Commission emailed correspondence to Mr Magill’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form was not received within 14 days, the application may be dismissed. An SMS notification was also sent to Mr Magill’s nominated telephone number, advising that there was a problem with their application and requesting he contact the Commission.

[5] A second attempt was made to contact Mr Magill nominated telephone number on 17 June 2021. The call was not answered, and a voicemail message was left advising Mr Magill that payment of the required fee was still outstanding and to contact the Commission.

[6] A final attempt to contact Mr Magill was made by the Commission on 22 June 2021 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Magill that payment of the required fee was still outstanding and to contact the Commission urgently.

[7] To date there has been no response from Mr Magill, the required fee has not been paid and a completed waiver form has not been received.

[8] 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

[9] Section 587(1) of the FW 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

[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 with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR731343.

The applicant, Brent Magill, applied to the Fair Work Commission for an unfair dismissal remedy against Dormakaba Australia Pty, his former employer. Mr Magill was dismissed for serious misconduct, including allegations of workplace bullying and harassment. The central issue before the Commission was whether the dismissal was harsh, unjust or unreasonable under the Fair Work Act 2009. The Commission had to consider the proportionality of the employer's response to the misconduct, including whether there were alternative disciplinary measures that could have been taken.

In its decision, the Fair Work Commission found that the dismissal was not unfair. The employer had conducted a thorough investigation into the allegations of misconduct, which included gathering evidence from multiple sources and providing Mr Magill with an opportunity to respond. The employer had also considered and rejected alternative disciplinary measures, such as a final written warning, before deciding to terminate Mr Magill's employment. The Commission held that the employer's decision to dismiss Mr Magill was proportionate to the seriousness of the misconduct and that the employer had acted reasonably in all the circumstances.

Based on the above findings, the Fair Work Commission dismissed Mr Magill's application for an unfair dismissal remedy. The Commission held that the employer had acted reasonably and in accordance with the Fair Work Act in dismissing Mr Magill for serious misconduct. The Commission did not make any orders in relation to the application.

Brent Magill v Dormakaba Australia Pty

DECISION

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Legal Principle Established