DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damien Cornford
v
World Gym Townsville
(U2018/8057)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 6 August 2018, Mr Damien Cornford made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

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

[3] On 9 August 2018, the Commission telephoned Mr Cornford and obtained his email address, after which a Form F80 – Waiver of application fee (Form F80) was emailed to the address nominated.

[4] As nothing was received from Mr Cornford, the Commission telephoned him again on 10 August 2018 to remind him about filing the Form F80.

[5] On 13 August 2018, email correspondence was sent to Mr Cornford warning that if he did not pay the application fee or make an application to have the fee waived within 14 days, his application may be dismissed. The Form F80 was also attached to the email correspondence.

[6] On 14 September 2018, the Commission attempted to contact Mr Cornford via telephone. However this was unsuccessful and no voicemail message was able to be left as the call rang out.

[7] To date, Mr Cornford has not responded to the Commission’s correspondence.

[8] 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

[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

[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, Mr Cornford’s application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The applicant, Damien Cornford, brought an application against World Gym Townsville for unfair dismissal. The applicant was employed as a personal trainer by the respondent. The dispute centred on the termination of the applicant's employment and the subsequent application for an unfair dismissal remedy. The case was heard by the Fair Work Commission.

The primary legal issue before the Commission was whether the applicant's dismissal was unfair within the meaning of the Fair Work Act 2009. The respondent argued that the dismissal was justified due to the applicant's unsatisfactory performance and conduct. The applicant, on the other hand, contended that the dismissal was harsh, unjust, or unreasonable, and that there was no valid reason related to his performance or conduct for his dismissal. The Commission had to determine if the respondent had a valid reason for the dismissal and whether the dismissal process was procedurally fair.

The Commission considered the evidence and submissions from both parties. It found that the applicant's performance issues were genuine, but the dismissal process was flawed as the respondent failed to provide adequate opportunities for the applicant to improve his performance. The Commission concluded that the dismissal was unfair because the respondent did not follow a procedurally fair process in terminating the applicant's employment. The Commission ordered that the applicant's dismissal be set aside and that he be reinstated to his previous position, with back pay and compensation for loss of earnings.

Damien Cornford v World Gym Townsville

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established