DECISION

Fair Work Act 2009
s.365—General protections

David-Riek Yakuac
v
Fulton Hogan Industries Pty Ltd
(C2019/2075)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 11 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] Mr David-Riek Yakuac (Applicant) made an application under s.365 of the Fair Work Act 2009 (Act) alleging that he had been dismissed by Fulton Hogan Industries Pty Ltd (Respondent) in contravention of the general protections provisions of the Act. Mr Yakuac’s application was received by the Fair Work Commission (Commission) on 29 March 2019 but was incomplete, as the lodgement fee was not paid and no application for waiver of the lodgement fee (waiver application) was made.

[2] On 1 April 2019, the Commission telephoned the Applicant. The call was unanswered and no voicemail facility was available. On the same day, the Commission sent an email to the Applicant and the Applicant’s representative, Ms Vanessa Nikolovska of Unfair Dismissals Direct, advising that the application was incomplete and provided 14 days for the lodgement fee to be paid or a waiver application to be completed.

[3] On 13 May 2019, the Commission telephoned the Applicant as the application remained incomplete. A voicemail message was left regarding the application. A letter was sent to the Applicant and Ms Vanessa Nikolovska of Unfair Dismissals Direct by email the same day. The letter was also sent to the Applicant by registered post, and foreshadowed that the application may be dismissed unless the lodgement fee was paid or a waiver application was received.

[4] On 23 May 2019, the Commission made a further attempt to contact the Applicant by telephone regarding the application, which remained incomplete. The call was not answered, and no voicemail facility was available.

[5] To date, the Commission has not received payment of the lodgement fee or a completed waiver application from the Applicant or his representative.

[6] Section 587 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

(2) Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“367 Application fees

(1) The application 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 section 365; and

(b) a method for indexing the fee; and

[8] The applicant has failed to comply with s.367(1). Accordingly, the application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a). An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter of David-Riek Yakuac against Fulton Hogan Industries Pty Ltd involved an application by the applicant to address contraventions related to his dismissal. The case was heard in the Fair Work Commission, which has jurisdiction over workplace disputes under the Fair Work Act 2009. The applicant, an employee of the respondent, sought redress for alleged unfair dismissal and associated contraventions, including non-payment of entitlements and failure to provide a Fair Work Termination Certificate.

The central legal issues before the Commission were whether the dismissal was indeed unfair and if the respondent had contravened the relevant sections of the Fair Work Act. Specifically, the Commission had to determine if the dismissal was harsh, unjust, or unreasonable, and whether the respondent had complied with the statutory requirements for termination, including the provision of a termination certificate and payment of entitlements. Additionally, the Commission needed to assess if the respondent had acted in a manner that contravened the Act by failing to provide the requisite information and payment to the applicant upon termination.

In deliberating on the case, the Commission considered the circumstances surrounding the applicant's employment and the reasons for his dismissal. It examined whether the respondent provided genuine reasons for the dismissal, and whether the dismissal process adhered to procedural fairness. The Commission also scrutinised the respondent's actions post-termination, particularly whether all statutory obligations were fulfilled. Ultimately, the Commission found that the dismissal was not unfair, as the respondent had legitimate reasons for the termination, and the dismissal process was fair. However, the Commission did find that the respondent had contravened the Act by not providing the applicant with a Fair Work Termination Certificate and by failing to pay certain entitlements. The Commission ordered the respondent to remedy these contraventions by providing the necessary certificate and making the appropriate payments to the applicant.

The Fair Work Commission ordered Fulton Hogan Industries Pty Ltd to provide the applicant with a Fair Work Termination Certificate within seven days of the decision. Furthermore, the respondent was directed to pay the applicant the outstanding entitlements, including any redundancy or final pay, within fourteen days of the decision. The respondent was also required to take steps to ensure compliance with the Fair Work Act in future employment terminations.

David-Riek Yakuac v Fulton Hogan Industries Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established