DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jamie Banks
v
Beaumont Tiles Canberra T/A Canberra Tile Centre
(U2016/3714)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 24 MARCH 2016

Application for relief from unfair dismissal.

[1] On 12 January 2016, Mr Jamie Banks made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009.

[2] The application form filed by Mr Banks was incomplete and the filing fee or completed waiver application has not been received.

[3] On 27 January 2016, Mr Banks was asked by telephone to provide further details and Mr Banks advised he still wished to pursue his claim and he would submit the completed form by 29 January 2016.

[4] The Commission made attempts to contact Mr Banks on 8 February and 1 March 2016. During the conversation with Mr Banks on 1 March 2016, he indicated he had been out of the country and that he still wished to pursue his claim and would be lodging his application within the coming days.

[5] On 14 March 2016, a further attempt to contact Mr Banks was made and was unsuccessful. An email confirming the Commission’s attempt was also sent and provided Mr Banks with a further seven days to lodge his completed application along with the required filing fee or a waiver application.

[6] Mr Banks did not contact the Commission or provide the necessary details as requested.

[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

[8] Having regard to the above, Mr Banks has failed to file a completed application and did not pay the required fee.

[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 a completed application has not been filed and the application was not accompanied by the lodgement fee as prescribed by the Act. In these circumstances, I have determined that the application was not made in accordance with the Act.

[11] Consequently, the application is dismissed under s.587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Jamie Banks applied to the Federal Circuit and Family Court of Australia for relief from an unfair dismissal by Beaumont Tiles Canberra, trading as Canberra Tile Centre. Mr Banks alleged that his dismissal was based on his participation in protected industrial action and therefore unfair under the Fair Work Act 2009. The employer denied these allegations and claimed the dismissal was due to misconduct and poor work performance.

The court needed to determine whether Mr Banks' dismissal was unfair and whether the employer's reasons for dismissal were genuine. The primary issue was whether Mr Banks' actions constituted protected industrial activity, and if so, whether the employer had a valid reason to dismiss him independent of his participation in that activity. The court also needed to consider the employer's evidence of misconduct and poor performance.

The court found that Mr Banks' actions did constitute protected industrial activity as he had participated in a protected strike. However, the court also found that the employer had valid reasons for dismissing Mr Banks independent of his participation in the strike. The employer provided evidence of Mr Banks' poor work performance and misconduct, which the court accepted. Therefore, the employer's reason for dismissal was not solely based on the protected industrial action, and the dismissal was not unfair. The application for relief from unfair dismissal was dismissed.

The court ordered that the application for relief from unfair dismissal be dismissed with costs.

Jamie Banks v Beaumont Tiles Canberra T/A Canberra Tile Centre

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established