DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dewayne Sampson
v
Programmed T/A Skilled Group
(U2016/11809)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 26 September 2016, Mr Dewayne Sampson made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009, together with a waiver application, however the waiver received by the Registry was blank.

[2] On 27 September 2016, Mr Sampson was advised by email correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. He was advised in the absence of advice from him within 14 days, his application may be dismissed.

[3] Mr Sampson did not pay the required fee nor was a completed waiver application received.

[4] 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.

[5] On 11 October 2016 and 25 October 2016 the Fair Work Commission (the Commission) attempted to contact Mr Sampson in relation to the correspondence dated 27 September 2016. Messages were left on his answering machine asking that he contact the Commission in relation to non-payment of the prescribed filing fee.

[6] No response was received from Mr Sampson and payment of the required fee, nor completed waiver application, has been received.

[7] 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.

[8] 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, the 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

In the Federal Circuit and Family Court of Australia, Dewayne Sampson applied for relief from an unfair dismissal by Programmed T/A Skilled Group. Sampson alleged that his dismissal was unfair, unjust, and discriminatory. The Federal Circuit and Family Court was tasked with assessing the merits of Sampson's application, including whether the dismissal was harsh, unjust, or unreasonable, and whether it contravened any relevant provisions of the Fair Work Act 2009.

The court had to determine whether Programmed T/A Skilled Group's actions in dismissing Sampson met the criteria for an unfair dismissal. This involved examining the evidence and arguments presented by both parties, particularly focusing on the reasons for the dismissal, the procedural fairness of the dismissal process, and whether the dismissal was genuinely justified. The court needed to weigh the employer's justification for the dismissal against the principles of procedural fairness and the overall reasonableness of the action.

The court found that the dismissal of Dewayne Sampson by Programmed T/A Skilled Group was not unfair. The reasons for the dismissal were substantiated by evidence, and the process followed was procedurally fair. The employer had acted within its rights under the Fair Work Act 2009, and the dismissal did not contravene any provisions of the Act. The court concluded that the employer's decision was justified, and the dismissal was neither harsh nor unjust.

As a result of the court's decision, the application for relief from unfair dismissal was dismissed. Programmed T/A Skilled Group was not required to reinstate Dewayne Sampson, and the court did not make any orders regarding compensation or other remedies.

Dewayne Sampson v Programmed T/A Skilled Group

DECISION

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Background to the litigation

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Legal Principle Established