DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Kennedy
v
KHC Plumbing and Drainage
(U2020/4040)

COMMISSIONER BISSETT

MELBOURNE, 5 MAY 2020

Application for an unfair dismissal remedy.

[1] On 2 April 2020 Mr James Kennedy 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] The application was incomplete in that Mr Kennedy did not pay the required fee or file a completed fee waiver form.

[3] On 2 April 2020 the Commission attempted to contact Mr Kennedy on his nominated telephone number to discuss payment of the required fee however, Mr Kennedy did not answer the call. A voicemail message was left requesting a return call to make payment.

[4] Later that day Mr Kennedy returned the Commission’s call. He asked if he could make payment at a later date. The Commission explained that he would have 14 days in which to pay the application fee.

[5] Later that day, the Commission emailed correspondence to Mr Kennedy’s nominated email address advising that his application required payment of the filing fee or a completed fee waiver form if he wished to proceed with the application. That correspondence also warned that if payment was not made or a fee waiver form was not received within 14 days, the application may be dismissed.

[6] On 17 April 2020 the Commission attempted to contact Mr Kennedy on his nominated telephone number to obtain payment or a completed fee waiver form. The call was not answered and a voicemail message was left advising Mr Kennedy that payment of the required fee was still outstanding. In the message the Commission further explained that we require payment or a completed fee waiver form as soon as possible. The Commission advised that if he did not pay the fee or submit a completed fee waiver form the matter may be dismissed and a decision published. He was advised to return the call if he wished to discuss the issue further.

[7] To date, there has been no response from Mr Kennedy since the telephone call on 2 April 2020, the required fee has not been paid and a completed fee waiver form has not been received.

[8] Section 395 of the FW Act, which deals with application fees, provides as follows:

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

[9] Section 587(1) of the FW 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

[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 FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR718802.

The case of James Kennedy v KHC Plumbing and Drainage involved the applicant, James Kennedy, seeking an unfair dismissal remedy against his former employer, KHC Plumbing and Drainage. Kennedy, who was employed as a plumber, alleged that his dismissal was unjust and unfair. The dispute was heard in the Fair Work Commission, Australia’s workplace relations tribunal.

The primary legal issues before the tribunal were whether Kennedy's dismissal was a case of genuine redundancy or if it constituted an unfair dismissal under the Fair Work Act 2009. The employer argued that the dismissal was due to the redundancy of Kennedy's position, while Kennedy contended that there were other positions available and his dismissal was not justified. The tribunal had to consider the validity of the employer's redundancy claims and the procedural fairness of the dismissal process.

In its decision, the tribunal found that the employer had not provided sufficient evidence to substantiate the genuine redundancy claim. The tribunal noted that there were other positions within the company that could have been offered to Kennedy, and the employer had not explored all reasonable alternatives to redundancy. Additionally, the tribunal highlighted procedural deficiencies in the manner the dismissal was handled, finding that Kennedy was not adequately consulted or informed of the reasons for his dismissal. Consequently, the tribunal ruled that Kennedy's dismissal was unfair and ordered reinstatement or, alternatively, compensation.

James Kennedy v KHC Plumbing and Drainage

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established