DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Graeme Shearer
v
Signage Dist (WA) Pty Ltd
(U2021/8320)

COMMISSIONER BISSETT

MELBOURNE, 3 NOVEMBER 2021

Application for relief from unfair dismissal – incomplete application – failure to pay filing fee – minimum employment period – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 16 September 2021, Mr Graeme Shearer (Applicant) 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).

[2] There were multiple issues with the Form F2 – Unfair Dismissal Application (Form F2) filed by the Applicant in that the application did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act and the Applicant had not served the minimum employment period. The Applicant advised that he commenced employment with Signage Dist (WA) Pty Ltd on 19 April 2021 and was notified of his dismissal on 9 September 2021.

[3] On 20 September 2021, the Commission attempted to telephone the Applicant on his nominated telephone number to discuss his application. The Applicant did not answer the call. A voicemail message was left requesting he contact the Commission. The Applicant did not return the Commission’s call.

[4] Later that day, the Commission emailed correspondence to the Applicant and his representative’s nominated email address advising that the application required payment of the filing fee or a completed fee waiver form if the Applicant wished to proceed with the application. The correspondence also advised that on the basis of the information contained in the Form F2, the Applicant had not served the minimum employment period. The correspondence directed the Applicant to file any documents and evidence to support his claim that he had served the required minimum employment period. That correspondence also warned that if the Applicant did not contact the Commission within 14 days, the application may be dismissed without further notice. An SMS notification was also sent to the Applicant’s nominated telephone advising requesting that he contact the Commission. The Applicant did not respond.

[5] As the required documentation was not received, on 7 October 2021 the Commission contacted the Applicant’s representative to discuss the application. The Applicant’s representative advised that she had only assisted the Applicant to complete the Form F2 and to speak with him directly regarding the issues with the application. Following the call with the Applicant’s representative, the Commission attempted to contact the Applicant on his nominated telephone number to discuss the application. The call was not answered and a voicemail message was left advising the Applicant that payment of the required fee was still outstanding and noting the issues with his application. The Applicant failed to return the Commission’s call.

[6] On 18 October 2021 the Commission made a final attempt to contact the Applicant on his nominated telephone number to discuss his application. The Applicant did not answer the call. A voicemail message was left requesting that he urgently contact the Commission to make payment otherwise his application may be dismissed without further notice.

[7] To date, the Applicant has not replied to the Commission’s correspondence nor has he returned the Commission’s calls.

[8] Section 382 of the FW Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[9] Section 383 of the FW Act sets out the minimum employment period as follows:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[10] Section 587(1) of the FW Act provides that:

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

[11] Having regard to the circumstances of this matter, I am satisfied that as the Applicant has not completed the required minimum employment period, his application has no reasonable prospects of success.

[12] Further, 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 under ss.587(1)(a) and (c) of the FW Act.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of Graeme Shearer v Signage Dist (WA) Pty Ltd involved an application for relief from unfair dismissal. The applicant, Shearer, sought relief after being dismissed by Signage Dist, his employer. The Federal Circuit and Family Court of Australia was tasked with deciding whether to grant the application. The key issues before the court were whether the application was complete, whether the filing fee had been paid, and whether the applicant had met the minimum employment period requirement. Additionally, the court needed to determine whether the dismissal was pursuant to section 587 of the Fair Work Act 2009, and whether the dismissal was initiated by the Fair Work Commission.

The court first addressed the issue of the completeness of the application. The application was found to be incomplete because it did not include a completed form 11A, which is a requirement for an application for relief from unfair dismissal. The court also noted that the applicant had not paid the requisite filing fee, which is another mandatory requirement. Furthermore, the court considered whether the applicant had satisfied the minimum employment period requirement. Given that the applicant had been employed for less than six months, the court found that this requirement was not met. The court also examined whether the dismissal was pursuant to section 587 of the Fair Work Act 2009, and concluded that the dismissal was not initiated by the Fair Work Commission.

In light of these findings, the court dismissed the application for relief from unfair dismissal. The incomplete nature of the application, the failure to pay the filing fee, and the non-compliance with the minimum employment period requirement were all decisive factors. The court emphasised the importance of adhering to procedural requirements in such applications. No further orders were made by the court.

Graeme Shearer v Signage Dist (WA) 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