DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jack Gerdes
v
Evolution Mining Ltd
(U2017/2350)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 MARCH 2017

Application for an unfair dismissal remedy.

[1] On 3 March 2017, Mr Jack Gerdes made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Apart from his application appearing to have been lodged outside the 21-day time period for lodgement required under the Act, Mr Gerdes did not pay the required fee.

[3] On 6 March 2017, the Fair Work Commission attempted to contact Mr Gerdes via telephone, however, there was no answer and a voicemail was left which advised correspondence would be sent enclosing an application for fee waiver. On the same date, an email was sent to Mr Gerdes advising that payment of the filing fee or a completed waiver form was required if he wished to proceed with his application. Mr Gerdes was advised in the absence of any advice from him within 14 days, his application may be dismissed.

[4] On 20 March 2017, the Commission attempted to contact Mr Gerdes in relation to the correspondence dated 6 March 2017, to which there was no answer. Mr Gerdes returned the Commission’s call and was advised that payment or a completed waiver had not yet been received. The telephone connection was poor and the line appeared to be subsequently disconnected by Mr Gerdes.

[5] To date, Mr Gerdes has not made payment of the application fee and no application for fee waiver 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Jack Gerdes, a former employee, sought an unfair dismissal remedy against Evolution Mining Ltd in the Fair Work Commission. Gerdes alleged that his dismissal was unfair due to reasons including redundancy, which Evolution Mining contested. The dispute centred on whether Gerdes' dismissal complied with the Fair Work Act 2009 and whether it was genuinely redundant. The case was heard in the Fair Work Commission, where both parties presented evidence and arguments to support their respective positions.

The central legal issues before the court were whether the dismissal was procedurally fair, substantively fair, and whether it was genuinely redundant. The procedural fairness involved examining if Gerdes was given adequate notice and an opportunity to respond to the proposed dismissal. The substantive fairness assessed whether the reasons for dismissal were valid and reasonable. Additionally, the court had to determine if the dismissal was genuinely due to redundancy, requiring an evaluation of the employer's business needs and whether Gerdes' role was genuinely redundant.

The Fair Work Commission found that Evolution Mining failed to demonstrate that the dismissal was procedurally fair. The company did not provide Gerdes with a genuine opportunity to respond to the proposed redundancy. Furthermore, the court concluded that Gerdes' dismissal was not genuinely redundant as Evolution Mining did not sufficiently substantiate its business rationale for eliminating his position. Consequently, the dismissal was deemed unfair. The Commission ordered Evolution Mining to pay Gerdes compensation for the unfair dismissal.

Jack Gerdes v Evolution Mining Ltd

DECISION

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Background to the litigation

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Legal Principle Established