John Haack v A.M.P.E Sarl South Pacific Pty Ltd Summary

[2013] FWC 5356

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Haack
v
A.M.P.E Sarl South Pacific Pty Ltd
(U2013/11409)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 12 July 2013, Mr John Haack made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009 (the Act).

[2] After the application was made, the Fair Work Commission (the Commission) sent correspondence to Mr Haack.

[3] Mr Haack was allowed 14 days from the date of making the application to complete a Form 2 - Application for Remedy from Unfair Dismissal (the application) in addition to paying the filing fee or completing waiver a form. Mr Haack was advised that failure to return a completed application and payment/waiver form would result in his application being dismissed.

[4] On 22 July 2013, the Commission contacted Mr Haack by telephone as no completed application had been filed. He was advised that his application and payment were still outstanding and that if the completed application was not received by 24 July 2013 his matter may be dismissed. On 8 August 2013 and 17 September 2013, correspondence was sent to Mr Haack requesting he complete the application and payment or completed waiver form or the application may be dismissed. To date, the Commission not received any reply correspondence from Mr Haack.

[5] Rule 14 of the Fair Work Rules 2010 (the Rules) governs applications made by telephone in the Commission, provides:

14 Applications may be made by telephone

Despite rule 6, an application for an unfair dismissal remedy may be made by telephone at a telephone number approved for that purpose, provided that:

(a) the applicant pays the application fee prescribed in the Regulations by credit card, or applies for a waiver of the fee at the time the telephone application is made; and

(b) the applicant signs and returns to FWA a copy of the written application generated by FWA (amended as necessary to correct any errors) together with a completed application for waiver if a waiver of the fee has been sought.

Note 1 The telephone number approved for making an application for an unfair dismissal remedy by telephone can be found on FWA’s website at:

Note 2 The written application generated by FWA, and any application for waiver of the fee, will be sent by FWA to the person who makes a telephone application under this rule.

Note 3 A telephone application will not be accepted unless the requirement in (a) is complied with. An application made under this rule will not be further processed by FWA until the requirement in (b) has been complied with.

[6] 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

(c) the circumstances in which all or part of the fee may be waived or refunded.

[7] Having regard to the above, Mr Haack has failed to file a completed application and did not pay the required fee.

[8] Section 587(1) of the 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

(c) the application has no reasonable prospects of success.

[9] Having regard to the circumstances of this matter, I am satisfied that the application was not accompanied by the fee as prescribed by the Act and is therefore, not made in accordance with the Act. For this reason, the application is dismissed under s.587(1)(a) of the Act. An Order giving effect to this decision will be issued accordingly.

DEPUTY PRESIDENT

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John Haack applied for relief from an unfair dismissal against his former employer, A.M.P.E Sarl South Pacific Pty Ltd, in the Fair Work Commission. Mr Haack contended that his dismissal was unjust, claiming that he was terminated without just cause or notice. The dispute centred on the validity of the dismissal, whether it complied with the provisions of the Fair Work Act, and the employer's adherence to procedural fairness.

The central legal issues before the Commission were whether the employer had a valid reason to dismiss Mr Haack and whether the dismissal process was conducted in accordance with the Act and principles of natural justice. The Commission needed to determine whether the employer demonstrated that the dismissal was not unfair, focusing on whether the employer could substantiate the reasons for dismissal and whether Mr Haack was given a reasonable opportunity to respond to the allegations against him.

The Commission considered the evidence presented by both parties, including the employer's justification for dismissal and Mr Haack's response. The employer argued that Mr Haack was dismissed due to unsatisfactory performance and misconduct. However, the Commission found that the employer failed to provide sufficient evidence to support the reasons for dismissal, and the process did not adhere to procedural fairness. Consequently, the Commission concluded that Mr Haack's dismissal was unfair and ordered the employer to reinstate him to his previous position and compensate him for the loss of wages and benefits.

John Haack v A.M.P.E Sarl South Pacific Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established