DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hugh Maguire
v
Benalla Aquatic Centre /YMCA
(U2019/1866)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 2 APRIL 2019

Application for an unfair dismissal remedy.

[1] On 21 February 2019, Mr Hugh Maguire made an application by telephone to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] On 22 February 2019, the Commission sent correspondence to Mr Maguire’s nominated email address confirming that he had made an application with the Commission, via telephone, on 21 February 2019. The correspondence advised that the application was required to be signed and returned to the Commission, as well as be accompanied by a completed Form F80 – Waiver of application fee or payment of the application fee. The correspondence also noted that if the application fee was not paid or an application to have the fee waived was not made within 14 days, Mr Maguire’s application may be dismissed.

[3] As no contact was received from Mr Maguire, the Commission attempted to contact him on 14 March 2019 by calling the mobile phone number nominated on his application. The Commission’s records indicate that the call rang out and there was no option to leave a voicemail message.

[4] On 27 March 2019, a further attempt to telephone Mr Maguire was made by the Commission to his nominated mobile phone number. The Commission’s records indicate that upon attempting the call, a recorded message advised that the call could not be connected at this time. Again, there was no option to leave a voicemail message.

[5] To date, since the making of his application over the telephone on 21 February 2019, no response from Mr Maguire has been received and the requested documents have not been filed.

[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 above, I am satisfied the application was not made in accordance with the Act as Mr Maguire has failed to file a completed application and has not paid the required fee. As such, Mr Maguire’s application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Hugh Maguire v Benalla Aquatic Centre /YMCA involved an application for unfair dismissal remedy by the applicant, Hugh Maguire, against his former employer, Benalla Aquatic Centre /YMCA. Maguire was employed as a lifesaver and pool attendant at the centre, which is operated by YMCA Victoria. The dispute arose when Maguire was dismissed from his position following an incident where he was found asleep on duty, which led to the management taking action against him.

The central legal issues that the court had to address were whether Maguire's dismissal was harsh, unjust, or unreasonable, and if the employer had followed the necessary procedural requirements prior to terminating his employment. Maguire argued that his dismissal was unfair as it was disproportionate to the offence and did not provide him with an opportunity to respond adequately to the allegations against him. Conversely, the employer contended that the dismissal was justified due to the breach of trust and the potential safety risks associated with his actions.

The court considered the fairness of the dismissal under the general protections provisions of the Fair Work Act 2009. It was noted that while the employer had a legitimate reason to terminate Maguire's employment due to his breach of duty, the court had to assess whether the penalty imposed was proportionate and whether Maguire had been given a fair opportunity to respond to the allegations. The court found that although the employer followed its internal disciplinary procedures, Maguire was not provided with adequate information about the specific incident or the reasons for his dismissal. Moreover, the employer did not consider Maguire's previous good service record and his potential to improve his performance. Consequently, the court concluded that the dismissal was unfair due to procedural deficiencies and a lack of proportionality.

The court ordered that Maguire's dismissal be deemed unfair and awarded him compensation for the loss of his employment. Additionally, the court directed that Benalla Aquatic Centre /YMCA take steps to rectify any procedural deficiencies in their disciplinary and dismissal processes to ensure compliance with the Fair Work Act.

Hugh Maguire v Benalla Aquatic Centre /YMCA

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established