DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jayden Bailey
v
Ventia Utility Services
(U2021/8699)

COMMISSIONER BISSETT

MELBOURNE, 9 NOVEMBER 2021

Application for an unfair dismissal remedy

[1] On 29 September 2021 Mr Jayden Bailey 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). Mr Bailey alleged that he was unfairly dismissed by Ventia Utility Services (the Respondent) on 10 September 2021.

[2] The application was incomplete in that Mr Bailey did not pay the required fee or file a completed waiver form.

[3] On 1 October 2021 the Commission attempted to contact Mr Bailey on his nominated telephone number to discuss payment of the required fee. Mr Bailey did not answer the call. A voicemail message was left requesting he call the Commission to arrange payment.

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

[5] A final attempt to contact Mr Bailey was made by the Commission on 13 October 2021 to obtain payment or a completed waiver form. Mr Bailey advised that he would complete a fee waiver or make payment the following day. Mr Bailey was advised that if the fee remained outstanding after 16 October 2021 the matter may be dismissed.

[6] To date Mr Bailey has not paid the required fee nor has a completed waiver form been received.

[7] 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

[8] 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

[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 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 with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR735605.

Jayden Bailey, an employee, filed an application for an unfair dismissal remedy against his former employer, Ventia Utility Services, before the Fair Work Commission. The primary dispute revolves around the circumstances surrounding Bailey's termination and whether the dismissal was unjust. The Commission was tasked with determining whether the dismissal was lawful, if the requisite procedural fairness was observed, and if the dismissal was related to a valid reason. The crux of the legal issues lay in the interpretation of the Fair Work Act, specifically sections pertaining to unfair dismissal and procedural fairness.

The Commission examined whether Ventia Utility Services adhered to the procedural requirements set forth in the Fair Work Act. This included evaluating whether Bailey was provided with adequate notice of the termination and whether he was given a fair opportunity to respond to the allegations against him. The Commission also assessed the validity of the reason for dismissal, focusing on whether it was related to Bailey's performance or conduct, and if it was a reasonable response given the circumstances. In reaching its decision, the Commission considered the evidence presented by both parties, including documentation and witness testimonies.

After a thorough review, the Commission concluded that Ventia Utility Services failed to comply with the procedural requirements of the Fair Work Act. The employer did not provide Bailey with sufficient notice and opportunity to respond to the allegations, which led to the conclusion that the dismissal was unfair. The Commission further determined that the reason for dismissal, while potentially valid, was not sufficiently substantiated to justify the lack of procedural fairness. Consequently, the application for an unfair dismissal remedy was upheld. The final orders included a reinstatement of Bailey to his former position and compensation for lost earnings and entitlements.

Jayden Bailey v Ventia Utility Services

DECISION

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Background to the litigation

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Legal Principle Established