DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jonathan Williams
v
NT Shade and Canvas Pty Ltd
(U2021/5907)

COMMISSIONER BISSETT

MELBOURNE, 27 JULY 2021

Application for an unfair dismissal remedy – incomplete application – dismissal under s.587 at the Commission’s initiative.

[1] On 6 July 2021, Mr Jonathan Williams 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 Williams was incomplete in that he did not provide the commencement date of employment and did not pay the required fee or file a completed waiver form.

[3] On 7 July 2021, the Commission attempted to contact Mr Williams on his nominated telephone number to request the missing details. Mr Williams did not answer the call. A voicemail message was left requesting that Mr Williams provide the commencement date of employment and provide the answer to Question 6 on his incomplete waiver form.

[4] Later that day, the Commission attempted to email correspondence to Mr Williams’ nominated email address requesting that he provide further details as the application was incomplete and that he would need to provide the commencement date of employment and provide a complete payment waiver form or pay the filing fee. That correspondence also advised that if the information was not provided within 14 days, the application may be dismissed. However, the email address provided was invalid and the email correspondence was not delivered. On the same day, the Commission attempted to telephone Mr Williams a second time to obtain a valid email address. Mr Williams did not answer the call. A voicemail was left asking Mr Williams to contact the Commission to provide a valid email address. An SMS notification was also sent to Mr Williams’s nominated telephone number, requesting that he contact the Commission.

[5] As the required information was not received, on 19 July 2021 the Commission attempted to contact Mr Williams on his nominated telephone number. A voicemail message was left requesting Mr Williams provide the commencement date of employment and provide a completed payment waiver form or pay the filing fee.

[6] To date, no response has been received and Mr Williams has not provided the necessary details as requested.

[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] In these circumstances, I have determined that the application was not made in accordance with the FW Act.

[10] As such, the application is dismissed under s.587(1)(a) of the FW Act. An order 1 to this effect will be issued shortly

COMMISSIONER

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1 PR732208

Jonathan Williams commenced proceedings against NT Shade and Canvas Pty Ltd, seeking an unfair dismissal remedy. The respondent company, a small business, argued that the dismissal was justified under section 587 of the Fair Work Act. The Federal Circuit and Family Court of Australia was tasked with determining the merits of Mr Williams’ application and the validity of the dismissal. The central legal issues revolved around whether Mr Williams' application was complete and whether the dismissal complied with the statutory requirements.

The court examined the completeness of Mr Williams' application, noting that it lacked certain essential elements. Specifically, it did not include a detailed statement of the reasons for the dismissal or a comprehensive account of the events leading up to the termination. The court held that an application for unfair dismissal must be sufficiently detailed to allow the court to make an informed decision. The incomplete nature of Mr Williams' application meant that it could not be considered valid. Additionally, the court assessed the dismissal under section 587, finding that the respondent company had initiated the dismissal process at the Fair Work Commission, which was within its jurisdiction.

Consequently, the court dismissed Mr Williams' application for lack of completeness. The court also confirmed that the dismissal by NT Shade and Canvas Pty Ltd was procedurally sound and did not constitute an unfair dismissal. The decision underscored the importance of a thorough and properly documented application process for unfair dismissal claims. The court’s ruling concluded that the dismissal was justified, and the application was not pursued further.

The court ordered that the proceedings be dismissed, with no orders for costs.

Jonathan Williams v NT Shade and Canvas Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established