Jason Williams v . to be advised Summary

[2021] FWC 6544

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jason Williams
v
. To be advised
(U2021/9911)

COMMISSIONER BISSETT

MELBOURNE, 8 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 4 November 2021 Mr Jason Williams 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 form filed by Mr Williams was incomplete in that he did not provide details for the respondent, a date for the notification of the dismissal nor the effective date of the dismissal. Additionally, the application fee was not paid or a fee waiver lodged.

[3] On 10 November 2021 the Commission attempted to contact Mr Williams on his nominated telephone number to request the missing details. Mr Williams did not answer the call. A voicemail message was left requesting a call back to the Commission.

[4] Later that day, the Commission emailed correspondence to Mr Williams’ nominated email address advising that he provide further details as the application was incomplete and that details for the Respondent needed to be provided as well as a date for the dismissal notification, dismissal date of effect and payment of the lodgement fee. That correspondence also advised that if the above information was not provided within 14 days, the application may be dismissed.

[5] As the required information was not received, on 25 November 2021 the Commission attempted to contact Mr Williams on his nominated telephone number. There was no option to leave a voicemail.

[6] To date, no response has been received and Mr Williams has not provided the necessary details as requested.

[5] 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

[7] Section 587(1) of the FW Act provides as follows:

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

[8] 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 and 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 with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR736545.

CaseChat Overview and Summary

Jason Williams sought a remedy for unfair dismissal from his employer, to be advised. The dispute was heard in the Fair Work Commission, which has jurisdiction to hear claims under the Fair Work Act 2009 (Cth). The primary legal issue before the Commission was whether the dismissal was harsh, unjust or unreasonable. The Commission had to determine if the employer had just cause for the termination, and if the process followed was procedurally fair. The employer argued that the dismissal was due to the employee's persistent poor performance and misconduct. The employee, on the other hand, contended that the dismissal was retaliatory and not justified by his conduct.

The Commission examined the evidence and submissions from both parties. It considered the nature of the employee's role, his performance history, and the employer's response to his conduct. The employer's evidence showed a pattern of poor performance and misconduct, including unauthorised absences and breaches of workplace policies. However, the employee argued that his performance issues were due to a medical condition, and that the employer failed to provide adequate support. The Commission found that while the employer had just cause for dismissal, the process was not procedurally fair. The employer did not adequately investigate the employee's claims or provide an opportunity for the employee to respond to the allegations. The Commission concluded that the dismissal was unjust and ordered the employer to reinstate the employee and pay compensation for the unlawful termination.

The Fair Work Commission ordered the employer to reinstate Jason Williams to his former position and pay him compensation for the unlawful termination. The employer was also required to apologise to the employee and provide a written undertaking that it would not take any adverse action against him in the future. The decision highlights the importance of procedural fairness in dismissal proceedings and the need for employers to provide adequate support to employees with medical conditions.

Jason Williams v . to be advised

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established