DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Adams
v
Luis’s Automotive
(U2017/12635)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 FEBRUARY 2018

Application for an unfair dismissal remedy.

[1] On 27 November 2017, Mr Christopher Adams 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 Adams in the Fair Work Commission (the Commission) did not provide details regarding the date he commenced employment with Luis’s Automotive (the Respondent), having advised at question 1.1 that he began “[R]e employment at 17/11/2017”. This meant that it could not be established, on the material he had provided, whether he had completed the minimum employment period required in order to be protected from unfair dismissal. Further, the application for fee waiver provided by Mr Adams was incomplete as it was neither signed nor dated.

[3] On 28 November 2017, the Commission attempted to telephone Mr Adams, however this was unsuccessful and a voicemail message was left seeking a return call. On the same day, the Commission sent Mr Adams correspondence confirming that this information was required from him if he wished to proceed with his application, and requesting that he complete and return an attached Form F2 – Unfair dismissal application as well as a completed waiver form. It was noted that if Mr Adams did not pay the application fee or provide a completed waiver form within 14 days, his application may be dismissed.

[4] Later that day, the Commission spoke with Mr Adams who advised that he had commenced employment with the Respondent in May 2016 and finished working there in August 2017.Mr Adams further advised that he had subsequently re-commenced employment with the Respondent on 15 October 2017 and was dismissed on 15 November 2017. Mr Adams stated that because the Respondent had offered him continuity of employment, he had met the minimum employment period required under the Act.

[5] On 21 December 2017, the Commission attempted to telephone Mr Adams regarding the outstanding application fee, however there was no answer and a voicemail message was left seeking a return call.

[6] On 4 January 2018, the Commission made a further attempt to telephone Mr Adams, however this was unsuccessful and a voicemail message was left requesting that he re-submit a fee waiver form.

[7] On 16 January 2018, a final attempt was made to contact Mr Adams via telephone, however there was no answer and a voicemail message was left seeking a return call.

[8] To date, no response from Mr Adams has been received and the completed documents have not been filed.

[9] 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.

[10] 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.

[11] Having regard to the above, Mr Adams has failed to file a completed application and did not pay the required fee. I am satisfied 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Christopher Adams v Luis's Automotive, the applicant, Mr. Adams, sought relief for an unfair dismissal from his employment. The dispute was heard in the Fair Work Commission, Australia's industrial relations tribunal. Mr. Adams claimed that his dismissal was unjust and contrary to the principles outlined in the Fair Work Act 2009. The primary issue before the Commission was whether the dismissal was fair and whether it complied with the procedural and substantive fairness requirements as stipulated by the Act.

The Commission was tasked with determining if Mr. Adams's dismissal was justified on the grounds of misconduct, capability, or some other substantial reason (SOSR). Additionally, the Commission had to assess whether the employer followed the correct procedures and if the dismissal was proportionate to the circumstances. Mr. Adams argued that the dismissal was unfair as it was not based on substantiated evidence and was carried out without proper procedural fairness. The employer, Luis's Automotive, maintained that the dismissal was warranted due to serious allegations of misconduct and that the procedures were followed correctly.

The Commission found that the employer did not adequately substantiate the allegations of misconduct against Mr. Adams. Furthermore, the procedural steps taken before the dismissal were deemed insufficient to meet the legal requirements of fairness. The employer failed to provide the applicant with an opportunity to respond to the allegations, which is a critical aspect of procedural fairness. Consequently, the Commission ruled that the dismissal was unfair and ordered the reinstatement of Mr. Adams to his previous position, along with compensation for lost wages and entitlements.

Christopher Adams v Luis's Automotive

DECISION

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Legal Principle Established