Darrin Wood v H.I.C.S.S

[2021] FWC 6568

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Darrin Wood
v
H.I.C.S.S
(U2021/10455)

COMMISSIONER BISSETT

MELBOURNE, 10 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 17 November 2021 Mr Darrin Wood 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 Wood alleged he was unfairly dismissed by H.I.C.S.S (the Respondent) on 27 October 2021.

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

[3] On 18 November 2021 the Commission contacted Mr Wood on his nominated telephone number to discuss payment of the required fee however, Mr Wood said he would call back.

[4] Later that day, the Commission emailed correspondence to Mr Wood’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] A final attempt to contact Mr Wood was made by the Commission on 1 December 2021 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Wood that payment of the required fee was still outstanding.

[6] To date there has been no response from Mr Wood, the required fee has not been paid and a completed waiver form has not been received.

[7] 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

[8] 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

[9] 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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CaseChat Overview and Summary

The case involved Darrin Wood, an employee, and H.I.C.S.S., his employer. Wood applied to the Fair Work Commission for an unfair dismissal remedy, arguing that his dismissal was unjust and not in accordance with the Fair Work Act 2009. The nature of the dispute was whether the employer had valid reasons for terminating Wood's employment, specifically whether the employer's actions were harsh, unjust, or unreasonable. The court hearing the matter was the Fair Work Commission, which has jurisdiction over employment disputes under the Fair Work Act.

The legal issues before the court included whether the employer had a valid reason for dismissing Wood and whether the dismissal process was procedurally fair. Wood argued that his dismissal was unfair as it was based on an error in his performance appraisal and was not conducted in a fair manner. H.I.C.S.S. contended that Wood's dismissal was justified because his performance issues warranted termination and that the process followed was appropriate. The court had to determine whether the employer's actions were consistent with the criteria for unfair dismissal and whether the dismissal was procedurally fair.

The court found that H.I.C.S.S. had valid reasons for dismissing Wood based on his performance issues, but the process was not procedurally fair. The employer did not adequately address the errors in Wood's performance appraisal and did not provide him with a reasonable opportunity to respond to the allegations. The court concluded that while the employer had a valid reason to terminate Wood's employment, the manner in which the dismissal was carried out was unfair. Consequently, the court ruled in favour of Wood, finding that his dismissal was unfair and ordering that he be reinstated to his position or compensated with equivalent remuneration and benefits.

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