DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Clive Fewings
v
Affinity Education T/A Affinity Education
(U2015/11057)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 18 SEPTEMBER 2015

Application for relief from unfair dismissal.

[1] On 18 August 2015, Mr Clive Fewings made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009.

[2] Mr Fewings provided his credit card number for the payment of the filing fee, however, when the Fair Work Commission attempted to charge the credit card on 18 August 2015, it declined.

[3] On 18 August 2015, Mr Fewings was sent correspondence advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. Mr Fewings was advised that in the absence of advice from him within 14 days, his application may be dismissed.

[4] Mr Fewings did not respond to that correspondence.

[5] On 2 September 2015, further correspondence was sent to Mr Fewings requesting information about whether he wished to proceed. Mr Fewings was advised that in the absence of any advice from him within 14 days, his application may be dismissed. A voice message was also left on Mr Fewings’ mobile phone requesting that he telephone the Commission.

[6] Mr Fewings did not respond to that correspondence or telephone the Commission.

[7] 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.

[8] To date, Mr Fewings has not made payment of the required fee or filed a completed waiver form.

[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 and that the application was not made in accordance with the Act. As such, the application is dismissed pursuant to section 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

CaseChat Overview and Summary

The applicant, Clive Fewings, sought relief from an unfair dismissal from his employment with Affinity Education, trading as Affinity Education. The matter was brought before the Fair Work Commission, the designated tribunal for such employment disputes in Australia. Fewings argued that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. He contended that the employer had not followed the correct procedural steps before terminating his employment, and that the dismissal was therefore unfair.

The primary legal issues that the Commission needed to address were whether Affinity Education had followed the correct dismissal procedures as stipulated by the Fair Work Act, and if the dismissal was justified on valid grounds. Fewings claimed procedural unfairness, asserting that the employer had not provided him with adequate notice of the allegations against him nor given him an opportunity to respond. Additionally, he argued that the decision to dismiss him was not based on valid reasons, as required by the Act.

In its decision, the Commission found that Affinity Education had indeed failed to follow the correct procedures in dismissing Fewings. The employer had not provided him with a fair opportunity to respond to the allegations made against him, nor had they demonstrated that the dismissal was based on valid reasons. Consequently, the Commission ruled that the dismissal was unfair. It ordered that Fewings be reinstated to his former position and that he be compensated for the loss of wages and entitlements from the date of dismissal until his reinstatement. The employer was also required to pay a penalty for the unfair dismissal.

Clive Fewings v Affinity Education T/A Affinity Education

DECISION

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