DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emilio Ramon Montero
v
Ferndot Holdings Pty Ltd
(U2018/13359)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 FEBRUARY 2019

Application for an unfair dismissal remedy.

[1] On 21 December 2018, Mr Emilio Ramon Montero made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Montero’s application was also accompanied by a fee waiver application form.

[2] On 31 December 2018, the Commission attempted to telephone Mr Montero through the telephone number provided on his application, however he was unable to be reached and no voicemail message was able to be left. Email correspondence was subsequently sent to Mr Montero’s nominated email address advising that the Commission had not waived the application fee and that his application would not proceed until the application fee had been paid.

[3] On each day of 10 January 2019 and 15 January 2019, the Commission attempted to telephone Mr Montero in relation to payment of the application fee. Both attempts were unsuccessful and there were no opportunities to leave a voicemail message on either occasion.

[4] On 29 January 2019, final email correspondence was sent to Mr Montero warning that if he did not pay the application fee within seven days, his application may be dismissed.

[5] To date, Mr Montero has not responded to the Commission’s correspondence nor paid the application fee.

[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

[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

[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, Mr Montero’s 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

Emilio Ramon Montero brought an application for unfair dismissal remedy against Ferndot Holdings Pty Ltd before the Fair Work Commission. Mr Montero, who was employed by Ferndot, alleged that his dismissal was unjust and sought reinstatement, compensation, and other remedies. Ferndot argued that the dismissal was justified and complied with the applicable laws and the terms of Mr Montero's employment contract. The Commission was required to determine whether Mr Montero's dismissal was indeed unfair, and if so, to what extent he should be compensated.

The primary legal issue was whether Ferndot had just cause for terminating Mr Montero's employment, considering the allegations of misconduct and the employer's right to manage its workforce. The Commission assessed the evidence presented by both parties regarding the circumstances surrounding Mr Montero's dismissal. It examined the procedural fairness of the dismissal process and whether Ferndot had followed its own policies and procedures in reaching the decision to terminate Mr Montero's employment. Additionally, the Commission evaluated the validity of the reasons provided by Ferndot for the dismissal.

Upon reviewing the evidence, the Fair Work Commission found that Ferndot had failed to provide adequate justification for the dismissal, and that procedural fairness was not properly observed. The Commission concluded that Mr Montero's dismissal was unfair. Consequently, the Commission ordered Ferndot to reinstate Mr Montero to his previous position, provide him with back pay, and compensate him for the distress and inconvenience caused by the unfair dismissal. The decision underscores the importance of adhering to procedural fairness and providing justifiable grounds for termination in employment matters.

Emilio Ramon Montero v Ferndot Holdings 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