DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jeremy Attard
v
Australian Postal Corporation
(U2020/9009)

COMMISSIONER BISSETT

MELBOURNE, 17 JULY 2020

Application for an unfair dismissal remedy.

[1] On 1 July 2020, Mr Jeremy Attard 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 was incomplete in that Mr Attard did not pay the required fee or file a completed waiver form.

[3] On 1 July 2020, the Commission attempted to contact Mr Attard on his nominated telephone number to discuss payment of the required fee however Mr Attard did not answer the call. A voicemail message was left requesting Mr Attard contact the Commission to make payment of the required fee.

[4] On 1 July 2020, Mr Attard was advised by email correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his 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 Attard’s nominated telephone number, advising that there was a problem with his application and requesting him to contact the Commission.

[5] A final attempt to contact Mr Attard was made by the Commission on 13 July 2020 to obtain payment or a completed waiver form. The call was not answered and a voicemail message was left advising Mr Attard that payment of the required fee was still outstanding.

[6] To date there has been no response from Mr Attard, the required fee has not been paid and a completed waiver form has not been received.

[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] 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

[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 Federal Circuit Court of Australia was presented with an application from Jeremy Attard against the Australian Postal Corporation. Attard sought relief on the grounds of unfair dismissal. The application arose out of a termination of employment that Attard believed was unjust and contrary to the provisions of the Fair Work Act 2009. The Australian Postal Corporation defended the termination, arguing that it was conducted in accordance with their employment policies and procedures.

The primary legal issues before the court included whether Attard's dismissal was indeed unfair and whether the company had breached the provisions of the Fair Work Act. The court examined the evidence provided by both parties to determine if the dismissal was justified, procedurally fair, and supported by valid reasons. Attard argued that the termination was not only unfair but also lacked procedural fairness, while the Australian Postal Corporation maintained that the dismissal was conducted in accordance with their internal policies and was justified under the circumstances.

In delivering its judgment, the court carefully analysed the evidence presented, the company's policies, and the procedural steps taken during the termination process. The court found that while the company had followed its internal procedures, the dismissal lacked substantive fairness and procedural justice. The court was particularly concerned about the manner in which the dismissal was communicated to Attard and the opportunity provided for him to respond to the allegations against him. Consequently, the court ruled that the dismissal was unfair and granted Attard the relief sought.

The court ordered that the Australian Postal Corporation reinstate Jeremy Attard to his former position and compensate him for the loss of wages and other entitlements from the date of dismissal until the date of reinstatement. Additionally, the court directed the company to take steps to ensure compliance with fair work principles in future terminations. This decision underscores the importance of both procedural and substantive fairness in employment terminations under the Fair Work Act.

Jeremy Attard v Australian Postal Corporation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established