DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dylan Wittingslow
v
Centre State Asphalting Pty Ltd
(U2017/13040)

COMMISSIONER BISSETT

MELBOURNE, 12 JANUARY 2018

Application for an unfair dismissal remedy.

[1] On 8 December 2017, Mr Dylan Wittingslow made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).

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

[3] On 8 December 2017, the Fair Work Commission (the Commission) attempted to telephone Mr Wittingslow, however this was unsuccessful and a voicemail message was left. On 11 December 2017, a further attempt to telephone Mr Wittingslow was made, however there was no answer and another voicemail message was left advising that written correspondence would also be sent regarding the outstanding filing fee. Later that day, correspondence was sent to Mr Wittingslow advising that his application was made without payment of the filing fee and that payment should be forwarded as soon as possible. Mr Wittingslow was advised in the absence of any advice from him within 14 days, his application may be dismissed.

[4] A final attempt to telephone Mr Wittingslow was made on 4 January 2018, however this was unsuccessful and a voicemail message was left advising that his application may be dismissed if he did not contact the Commission regarding the outstanding filing fee.

[5] To date, no response from Mr Wittingslow has been received.

[6] 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

(c) the circumstances in which all or part of the fee may be waived or refunded.

[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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Dylan Wittingslow commenced proceedings against his former employer, Centre State Asphalting Pty Ltd, seeking relief under the Fair Work Act 2009. The dispute arose from allegations of unfair dismissal and subsequent claims for general damages. The matter was heard in the Fair Work Commission.

The central legal issues before the Commission were whether the dismissal was harsh, unjust, or unreasonable, and if so, whether Mr Wittingslow was entitled to a remedy under the Act. The employer contended that the dismissal was justified due to misconduct, while Mr Wittingslow argued that the termination was unfair and that he was not afforded procedural fairness.

The Commission found that while the employer had a valid reason for dismissal, the process was flawed. The employer failed to provide Mr Wittingslow with adequate information and opportunity to respond to the allegations. Consequently, the dismissal was deemed harsh, unjust, or unreasonable. The Commission ordered reinstatement and compensation for loss of earnings, along with an apology for the procedural failings. The employer was also required to pay costs associated with the proceedings.

Dylan Wittingslow v Centre State Asphalting 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