DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Malone
v
KNL Glass
(U2016/14131)

COMMISSIONER BISSETT

MELBOURNE, 17 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 27 November 2016, Mr James Malone made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Malone did not pay the required fee.

[3] On 28 November 2016, the Fair Work Commission attempted to contact Mr Malone on the telephone number provided in his application and a voicemail message was left. On the same date, correspondence was sent to Mr Malone advising that his application was incomplete and required payment of the filing fee or a completed waiver form and that in the absence of any advice from him within 14 days, his application may be dismissed.

[4] On 12 December 2016, the Commission again attempted to telephone Mr Malone, however this was unsuccessful and a voicemail message was left. On the same day, further correspondence was sent to Mr Malone advising the application remained unpaid and that in the absence of any advice from him within 14 days, his application may be dismissed.

[5] A final letter was sent on 3 January 2017 noting the application remained unpaid and that contact should be made to make payment or Mr Malone should submit an application for fee waiver. Mr Malone was advised in the absence of any advice from him within 14 days, his application may be dismissed.

[6] To date, there has been no response from Mr Malone and payment of the required fee has not been made.

[7] 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.

[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

(c) the application has no reasonable prospects of success.

[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. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, James Malone, sought relief from an unfair dismissal by KNL Glass. The dispute arose from Mr Malone's termination by the respondent, which he contested on the basis of procedural unfairness and potential discrimination. The case was heard in the Fair Work Commission.

The central legal issues revolved around whether Mr Malone's dismissal was handled in accordance with procedural fairness and if there were any discriminatory practices involved. The court examined the procedures followed by KNL Glass during the termination process, including whether Mr Malone was given adequate notice, an opportunity to respond to the allegations against him, and if the decision was made in good faith. Additionally, the court considered whether Mr Malone's termination was influenced by discriminatory factors such as his age or previous complaints about workplace conditions.

In reaching its decision, the Fair Work Commission closely examined the evidence presented by both parties. The respondent argued that Mr Malone's dismissal was justified due to persistent absenteeism and performance issues. However, the applicant countered that the termination was a retaliatory act due to his previous grievances about unsafe working conditions. The court found that the procedures followed during the dismissal were not entirely fair, as Mr Malone was not given an adequate opportunity to respond to the allegations. Moreover, the evidence suggested that the termination may have been influenced by discriminatory factors, thus exacerbating the procedural unfairness. Consequently, the court ruled in favour of the applicant, finding the dismissal to be unfair.

The Fair Work Commission ordered that Mr Malone be reinstated to his former position with KNL Glass and that he receive compensation for the loss of wages and other entitlements from the date of his dismissal until his reinstatement. Furthermore, the respondent was directed to take specific steps to ensure compliance with anti-discrimination laws in the future.

James Malone v KNL Glass

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established