DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Rudd
v
Hotel Monier
(U2016/14085)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 25 November 2016, Mr Joshua Rudd made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The application form filed by Mr Rudd in the Fair Work Commission was incomplete as Mr Rudd did not respond to the question regarding the date he commenced working at Hotel Monier. The application for fee waiver (waiver form) was also incomplete.

[3] On 25 November 2016, the Commission attempted to contact Mr Rudd by telephone, however this was unsuccessful and a voice message was left. On the same date, a letter was sent to Mr Rudd advising the application and waiver form were both incomplete. The correspondence indicated the forms should be completed and returned to the Commission and that in the absence of any advice being received within 14 days, Mr Rudd’s application may be dismissed.

[4] On 9 December 2016, as no response had been received to the correspondence of 25 November 2016, further correspondence was sent to Mr Rudd regarding his incomplete application and waiver form. Mr Rudd was advised if he wished to proceed with his matter, the completed documentation should be returned to the Commission as soon as possible and that in the absence of any advice from him within 14 days, his application may be dismissed.

[5] On 3 January 2017, a further attempt to contact Mr Rudd via telephone was made, however this was also unsuccessful and a voice message was left. Further written correspondence was sent at this time regarding the incomplete documents and sought completed documents be returned as soon as possible.

[6] To date, Mr Rudd has not contacted the Commission or provided the necessary details as requested.

[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

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

[8] Having regard to the above, Mr Rudd has failed to file a completed application and did not pay the required fee or file a completed waiver form for assessment.

[9] 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

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

[10] 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 giving effect to this decision will be issued accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Joshua Rudd versus Hotel Monier involves an application for relief from unfair dismissal. The applicant, Joshua Rudd, seeks to challenge his dismissal from employment by Hotel Monier. The dispute centres on the fairness of the dismissal, with Rudd arguing that his termination was unjust and contrary to principles of fairness.

The primary legal issue before the court was whether the dismissal of Joshua Rudd was procedurally fair, substantively fair, or both. The court had to determine if the employer adhered to the procedural requirements outlined in the relevant employment laws and if the substantive reasons for the dismissal were justifiable. The court needed to weigh the evidence presented by both parties regarding the circumstances leading to Rudd's dismissal and assess the fairness of the decision-making process.

In its reasoning, the court meticulously examined the evidence provided by both Rudd and Hotel Monier. The court considered the employer's justification for the dismissal, the steps taken by Hotel Monier in reaching the decision, and whether Rudd had an opportunity to respond to the allegations against him. The court concluded that the dismissal was procedurally fair as Hotel Monier had followed the necessary protocols and provided Rudd with an opportunity to be heard. However, the court found that the substantive decision to terminate Rudd's employment was not fair. The employer failed to provide sufficient evidence to justify the dismissal on the grounds presented. As a result, the court ruled in favour of Rudd, finding the dismissal to be unfair and granting him relief from the termination.

As part of the final orders, the court reinstated Joshua Rudd to his previous position at Hotel Monier and ordered the employer to compensate him for the period of unjust dismissal. The court also directed Hotel Monier to review its dismissal policies and procedures to ensure compliance with fair employment practices.

Joshua Rudd v Hotel Monier

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established