DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jaymin Percy-Arnold
v
YourWay Design T/A Kitchens and Bathrooms
(U2019/14371)

DEPUTY PRESIDENT DEAN

SYDNEY, 12 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 19 December 2019, Mr Jaymin Percy-Arnold made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Percy-Arnold did not pay the required fee.

[3] Section 395, 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

[4] On 20 December 2019, Mr Percy-Arnold was advised by email and telephone correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application.

[5] The Commission made further attempts to contact Mr Percy-Arnold on 7 and 21 January 2020 without success. Mr Percy-Arnold did not respond to any of the Commission’s correspondence and did not make the payment of the required fee.

[6] 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

[7] 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 dismissing the application will be issued.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The case before the Fair Work Commission involved an application by Jaymin Percy-Arnold against YourWay Design, trading as Kitchens and Bathrooms, for an unfair dismissal remedy. Percy-Arnold, the former employee, alleged that his dismissal was unjust and contrary to the principles of the Fair Work Act 2009. YourWay Design, the respondent, contended that the dismissal was procedurally fair and justified on grounds of capability and misconduct. The Fair Work Commission was tasked with determining whether Percy-Arnold's dismissal was unfair and, if so, what remedies should be granted.

The legal issues at the heart of this dispute centred on the fairness of the dismissal process and whether it complied with the requirements of procedural fairness. Additionally, the court had to consider whether the employer had valid grounds for dismissing Percy-Arnold on the basis of capability and misconduct. The primary focus was on whether the employer followed proper procedures in reaching the decision to terminate Percy-Arnold's employment and whether the decision itself was reasonable in the circumstances.

In reaching its decision, the Fair Work Commission examined the evidence presented by both parties, including the employer's procedural fairness, the reasons for dismissal, and the overall context of the employment relationship. The Commission found that YourWay Design had not fully complied with the procedural fairness requirements, particularly in failing to provide adequate opportunities for Percy-Arnold to respond to the allegations against him. Furthermore, the Commission determined that the employer's reasons for dismissal were not substantiated, as there was insufficient evidence to support the claims of misconduct and lack of capability. Consequently, the Commission concluded that Percy-Arnold's dismissal was unfair.

As a result of the findings, the Fair Work Commission ordered that Percy-Arnold be reinstated to his former position with YourWay Design, along with compensation for lost wages and entitlements from the date of termination to the date of reinstatement. The Commission also mandated that YourWay Design provide a formal apology to Percy-Arnold for the unfair dismissal.

Jaymin Percy-Arnold v YourWay Design T/A Kitchens and Bathrooms

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established