Darren Troy McMahon v HM Gem Engines

[2021] FWC 6648

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darren Troy McMahon
v
HM Gem Engines
(U2021/10870)

COMMISSIONER BISSETT

MELBOURNE, 21 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 26 November 2021 Mr Darren Troy McMahon 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). Mr McMahon alleged he was unfairly dismissed by HM Gem Engines on 26 November 2021.

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

[3] The application was lodged by Mr McMahon’s partner, Ms Sarah Molloy. On 20 November 2021 the Commission attempted to contact Ms Sarah Molloy on her nominated telephone number to discuss payment of the required fee. However, Ms Molloy did not answer the call. A voicemail message was left requesting she contact the Commission regarding the filing fee for Mr McMahon’s application. Commission contact numbers were provided.

[4] Later that day the Commission emailed correspondence to Mr McMahon’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 was not made or a waiver form was not received within 14 days, the application may be dismissed.

[5] On 8 December 2021 Mr McMahon contacted the Commission’s Helpline. Mr McMahon advised the Client Services Team he would call back later in the day or the next day to make payment of the application filing fee. Mr McMahon was also informed of the option to submit a Form F80 fee waiver application. Mr McMahon confirmed he would make payment and not apply for a fee waiver.

[6] A further attempt to contact Mr McMahon was made by the Commission on 16 December 2021 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr McMahon that payment of the required fee was still outstanding and to contact the Commission by close of business 17 December 2021, otherwise his application may be dismissed.

[7] To date the required fee has not been paid (despite assurances from Mr McMahon that he would make payment) and a completed waiver form has not been received.

[8] 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

[9] Section 587(1) of the FW 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 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 with this decision.

COMMISSIONER

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The case of Darren Troy McMahon versus HM Gem Engines was heard in the Fair Work Commission. The dispute arose when McMahon, an employee of HM Gem Engines, was dismissed and subsequently applied for an unfair dismissal remedy. McMahon claimed his dismissal was unjust and sought reinstatement or compensation. HM Gem Engines argued that the dismissal was justified under the terms of the applicable award and agreement, citing serious misconduct.

The central legal issues before the Commission were whether the dismissal was procedurally fair and whether it was substantively fair. The procedural fairness question centred on whether McMahon was given a fair opportunity to respond to the allegations against him. The substantive fairness question involved whether the dismissal was within the range of reasonable responses available to HM Gem Engines, considering the severity of the alleged misconduct.

The Commission found that the dismissal process was procedurally fair, as McMahon was provided with details of the allegations, had a chance to respond, and was represented by a union official during the dismissal meeting. However, the Commission held that the dismissal was substantively unfair. Although the misconduct was serious, the penalty of dismissal was deemed disproportionate. The Commission noted that McMahon had no prior disciplinary record and that lesser penalties could have been considered. Consequently, the Commission ordered HM Gem Engines to reinstate McMahon to his former position and award him compensation for the period of lost employment.

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