DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brodie Hayes
v
Axis Plumbing NSW Pty Ltd T/A Axis Plumbing NSW Pty Ltd
(U2021/11270)

COMMISSIONER BISSETT

MELBOURNE, 24 DECEMBER 2021

Application for an unfair dismissal remedy – failure to pay filing fee – dismissal under s.587 at the Commission’s initiative.

[1] On 7 December 2021, Mr Brodie Brew Hayes (Applicant) 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).

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

[3] On 8 December 2021, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment however the Applicant did not answer the call. A voicemail message was left requesting he contact the Commission to make payment.

[4] Later that day, the Commission emailed correspondence to the Applicant’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 is not made or a waiver form is not received within 14 days, the application may be dismissed. The Applicant did not respond.

[5] A final attempt to contact the Applicant was made by the Commission on 21 December 2021 to obtain payment or a completed fee waiver form. The call was not answered and a voicemail message was left advising the Applicant that payment of the required fee was still outstanding and requesting a return call.

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

[7] 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

[8] 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

[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 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 PR737157

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Brodie Hayes for an unfair dismissal remedy against Axis Plumbing NSW Pty Ltd, trading as Axis Plumbing NSW Pty Ltd. The applicant, Hayes, sought to have his dismissal deemed unfair on the basis of procedural unfairness. The respondent, Axis Plumbing, initially opposed the application on the grounds that Hayes had failed to pay the necessary filing fee, a contention that was later withdrawn. The dismissal in question occurred under section 587 of the Fair Work Act 2009, initiated by the Commission itself.

The legal issues before the Commission centred on whether Hayes' dismissal was procedurally unfair and whether the failure to pay the filing fee was a valid reason for dismissing the application. The Commission had to determine if Hayes' dismissal was justified under the circumstances and whether procedural fairness was observed. The central issue was whether the Commission had correctly exercised its discretion to dismiss the application on the basis of procedural fairness or if there were other compelling reasons to grant Hayes the remedy he sought.

In addressing these issues, the Commission considered the procedural fairness of the dismissal, the obligations of the parties in such proceedings, and the consequences of non-compliance with procedural requirements. The Commission found that Hayes' dismissal was indeed procedurally unfair, as it was not conducted in a manner that accorded with procedural fairness. The Commission noted that while the filing fee was initially a point of contention, the ultimate decision to dismiss the application was based on procedural fairness rather than the fee. Consequently, the Commission determined that the dismissal was unfair, and Hayes was entitled to the remedy he sought.

As a result of the Commission's findings, it ordered that Hayes' dismissal be deemed unfair. The Commission also directed Axis Plumbing to reinstate Hayes to his previous position and to compensate him for the loss of earnings and other entitlements from the date of dismissal. This decision underscores the importance of procedural fairness in dismissal proceedings and the Commission's authority to intervene where such fairness is not observed.

Brodie Hayes v Axis Plumbing NSW Pty Ltd T/A Axis Plumbing NSW Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established