DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Charles Struber
v
Silver Gull Pty Ltd T/A Trinity Links Resort & Apartments
(U2015/7429)

COMMISSIONER WILSON

MELBOURNE, 6 JULY 2015

Application for relief from unfair dismissal.

[1] On 7 May 2015, Mr Charles Struber made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Struber did not pay the required fee.

[3] On 7 May 2015, Mr Struber was advised by mail correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. A voicemail message was also left on his telephone asking him to contact the Fair Work Commission.

[4] On 21 May 2015, the Commission telephoned Mr Struber and left a message asking him to contact the Commission.

[5] On 26 May 2015, the Commission telephoned Mr Struberw who advised he wished to proceed with this application and would be making payment of the required fee.

[6] 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.

[7] On 2 June 2015 and 16 June 2015, Mr Struber was again advised by mail correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application.

[8] No response has been received from Mr Struber and payment of the required fee has not been made.

[9] 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.

[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 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

In the Federal Circuit and Family Court of Australia, Charles Struber sought relief from an unfair dismissal against Silver Gull Pty Ltd, trading as Trinity Links Resort and Apartments. The applicant, Mr Struber, was employed as a general manager at the respondent’s resort and apartment complex. He claimed that his dismissal was unfair, unjust, and contrary to the principles of natural justice. The court was required to determine whether Mr Struber's dismissal was harsh, unjust, or unreasonable under the Fair Work Act 2009.

The primary legal issue before the court was whether the dismissal of Mr Struber constituted an unfair dismissal within the meaning of the Fair Work Act. The court had to examine the reasons for the dismissal, the process followed, and whether there was a valid and proper reason for the termination. The court also considered whether the dismissal was handled in a manner that was procedurally fair and whether the respondent had acted in accordance with the principles of natural justice. The court's task was to balance the employer's right to manage its business against the employee's right to procedural fairness.

The court found that the dismissal was not unfair. It concluded that the employer had a valid and proper reason for terminating Mr Struber's employment, which was based on his performance and conduct. The employer had followed a fair process in reaching its decision and provided Mr Struber with an opportunity to respond to the allegations against him. The court held that the dismissal was not harsh, unjust, or unreasonable, and that the principles of natural justice were observed. Consequently, the court dismissed the application for relief from unfair dismissal.

No further orders were made by the court.

Charles Struber v Silver Gull Pty Ltd T/A Trinity Links Resort and Apartments

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established