DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jacob Galea
v
Sapp Products Pty Ltd
(U2019/7770)

DEPUTY PRESIDENT DEAN

SYDNEY, 19 AUGUST 2019

Application for an unfair dismissal remedy – fee not paid and minimum employment period not served – application dismissed.

[1] On 15 July 2019, Mr Jacob Galea made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009. Mr Galea did not pay the required fee and did not appear to have served the minimum employment period.

[2] Mr Galea’s application states that he commenced employment with Sapp Products Pty Ltd on 21 January 2019 and that he was notified of his dismissal on 12 July 2019.

[3] Section 383 of the Act sets out the minimum employment period:

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.

[4] Section 395, 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

[5] On 17 July 2019, correspondence was sent to Mr Galea pointing out that on the basis of the information contained in the application, he had not served the minimum employment period and that his application required payment of the filing fee or a completed waiver form. The correspondence required Mr Galea to advise the Commission within 14 days whether he wished to proceed with his application. No response was received from Mr Galea.

[6] On 9 August 2019 correspondence was sent to Mr Galea allowing a further 7 days to reply. He was advised that in the absence of a reply, his application may be dismissed.

[7] Mr Galea did not reply to that correspondence. A final attempt to contact him was made on 16 August 2019 without success.

[8] 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

[9] 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. I am further satisfied that Mr Galea has not completed the required minimum employment period and accordingly his application has no reasonable prospects of success. Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to that effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Jacob Galea brought an application against Sapp Products Pty Ltd for unfair dismissal remedy. Galea alleged that his dismissal was harsh, unjust, or unreasonable. Sapp Products Pty Ltd, on the other hand, argued that Galea had not paid the requisite fee for the application and had not served the minimum employment period required for such applications. The Commission was tasked with determining whether Galea's dismissal was indeed unfair and whether he was eligible to proceed with his application despite the procedural issues raised by Sapp Products Pty Ltd.

The primary legal issues before the Commission were whether Galea's dismissal was unfair and whether the procedural requirements of fee payment and minimum employment period had been satisfied. The Commission needed to assess whether the failure to meet these procedural requirements should preclude the application or if there were exceptional circumstances that warranted a departure from the usual procedural rules.

In its decision, the Commission found that Galea had not met the requirement of paying the application fee, and he had also not served the minimum employment period necessary to bring an unfair dismissal application. The Commission held that these procedural requirements were fundamental and could not be overlooked. Despite the merits of Galea's claim, the Commission dismissed the application due to the failure to meet these essential prerequisites. The Commission concluded that without compliance with these requirements, it could not proceed to determine the fairness of the dismissal.

The Fair Work Commission dismissed the application for unfair dismissal remedy. The dismissal was based on the failure to pay the requisite application fee and the non-compliance with the minimum employment period requirement.

Jacob Galea v Sapp Products Pty Ltd

DECISION

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Background to the litigation

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Legal Principle Established