DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jakob Walsh
v
Newnham Scaffolding Pty Ltd T/A Newnham Scaffolding Pty Ltd
(U2017/8110)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 AUGUST 2017

Application for an unfair dismissal remedy.

[1] On 27 July 2017, Mr Jakob Walsh made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] In his application, Mr Walsh noted in the comments section that he was “unable to complete [the] financial hardship waiver on my device.”

[3] On 28 July 2017, in addition to confirming via telephone the date Mr Walsh commenced working for Newnham Scaffolding Pty Ltd (Newnham Scaffolding), the Fair Work Commission advised it would send an application for fee waiver to Mr Walsh by email for him to complete and return. Correspondence was sent to Mr Walsh which sought that he complete his Application form with his date of commencement at Newnham Scaffolding and an application for fee waiver was also provided. Mr Walsh was advised in the absence of any advice from him within 14 days, his application may be dismissed.

[4] As no response had been received, on 7 August 2017 the Commission rang Mr Walsh who advised he did not receive an email with waiver form attached on 28 July 2017. Mr Walsh was advised by telephone and in correspondence which was sent to him that day that his application was at risk of being dismissed if he did not respond. An application for fee waiver was again attached to the correspondence for Mr Walsh to complete.

[5] On 14 August 2017, a further telephone call was made to Mr Walsh regarding the status of his outstanding documentation. Mr Walsh confirmed he received the correspondence of 7 August 2017, though advised it did not have any attachments. An offer was made to talk Mr Walsh through retrieving the form from the Commission’s website, however he advised he was working and would return the call in the afternoon.

[6] On 15 August 2017, during another phone call, Mr Walsh advised he would lodge a completed application for fee waiver later the same day.

[7] To date, no application for fee waiver has been received from Mr Walsh.

[8] 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.

[9] 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.

[10] 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

In the case of Jakob Walsh v Newnham Scaffolding Pty Ltd T/A Newnham Scaffolding Pty Ltd, the applicant, Jakob Walsh, sought an unfair dismissal remedy. The applicant claimed that he was dismissed by the respondent, Newnham Scaffolding Pty Ltd, in unfair circumstances. The matter was heard in the Fair Work Commission, an Australian workplace relations tribunal with jurisdiction over unfair dismissal claims.

The central legal issues revolved around whether the applicant's dismissal was procedurally unfair, substantively unfair, or both. Procedural unfairness pertains to whether the respondent followed appropriate procedures in dismissing the applicant. Substantive unfairness addresses whether the dismissal was unjust in the circumstances, such as being harsh, unjust, or unreasonable. The applicant contended that the dismissal was unfair because the respondent did not provide adequate reasons and failed to follow a fair process, leading to an unjust outcome.

The Commission found that the applicant's dismissal was both procedurally and substantively unfair. Procedurally, the Commission determined that the respondent did not provide sufficient reasons for the dismissal, which contravened the principles of natural justice. Substantively, the Commission held that the dismissal was unjust given the applicant's long service and the lack of evidence supporting the respondent's reasons for dismissal. Consequently, the Commission ordered that the applicant be reinstated to his position and awarded compensation for the period of lost employment.

The Fair Work Commission ordered that Jakob Walsh be reinstated to his position as an employee of Newnham Scaffolding Pty Ltd and be compensated for the period of lost employment. Additionally, the Commission ordered the respondent to pay the applicant's costs associated with the application.

Jakob Walsh v Newnham Scaffolding Pty Ltd T/A Newnham Scaffolding Pty Ltd

DECISION

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