DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jesse Jarrad
v
The Trustee for SA Motels Unit Trust T/A Adelaide Paringa Motel
(U2020/8323)

COMMISSIONER BISSETT

MELBOURNE, 14 JULY 2020

Application for an unfair dismissal remedy.

[1] On 16 June 2020 Mr Jesse Jarrad 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 Jarrad was incomplete in that on his Form F2 Unfair dismissal application (Form F2) he did not provide the commencement date of employment, respondent details and provided a blank Form F80 – Waiver of Application Fee.

[3] On 17 June 2020 the Commission attempted to contact Mr Jarrad on his nominated telephone number to request the missing details. Mr Jarrad did not answer the call. A ten second voicemail message was left requesting that the Mr Jarrad contact the Commission quoting his matter number in order to further discuss his application.

[4] Later that day, the Commission emailed correspondence to Mr Jarrad’s nominated email address advising that he provide further details as the application was incomplete as question 1.1 on his Form F2 was not answered and a completed waiver was not provided. That correspondence also advised that if the requested information was not provided within 14 days, the application may be dismissed. An SMS notification was also sent to Mr Jarrad’s nominated telephone number, requesting that he contact the Commission.

[5] As the required information was not received, on 29 June 2020 the Commission attempted to contact Mr Jarrad on his nominated telephone number. A voicemail message was left requesting Mr Jarrad to contact the Commission urgently to discuss his application and the missing information that is required in order to proceed.

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

[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 shortly

COMMISSIONER

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CaseChat Overview and Summary

Jesse Jarrad sought relief from the Federal Circuit and Family Court of Australia, claiming unfair dismissal from his employment with the Trustee for SA Motels Unit Trust trading as Adelaide Paringa Motel. The primary focus of the case was on whether the dismissal was justified, procedurally fair, and whether the termination was harsh, unjust, or unreasonable. The applicant alleged that he was dismissed without cause, and that the process leading to his termination was flawed. The respondent, the motel operator, contended that the dismissal was warranted due to the applicant’s misconduct, and that the procedures followed were appropriate.

The court had to determine several key legal issues. Firstly, whether the termination was for a valid reason, specifically if misconduct on the part of the applicant justified dismissal. Secondly, whether the employer followed the correct procedural steps in reaching the decision to terminate. Lastly, the court had to assess if the dismissal was harsh, unjust, or unreasonable, taking into account all the circumstances, including the nature of the employment and whether a reasonable employer would have reached the same decision. The court's analysis involved a detailed examination of the evidence presented regarding the applicant's conduct, the employer's response, and the fairness of the dismissal process.

In its decision, the court found that the applicant's dismissal was not justified as there was insufficient evidence to support the claim of misconduct. The court also determined that the procedures leading to the dismissal were flawed, as the employer failed to adequately investigate the allegations against the applicant. Additionally, the court concluded that the dismissal was harsh, unjust, and unreasonable given the lack of proper investigation and the absence of a valid reason for termination. Consequently, the court granted the applicant's application for an unfair dismissal remedy.

Jesse Jarrad v The Trustee for SA Motels Unit Trust T/A Adelaide Paringa Motel

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established