Joshua Wescombe v NRW Mining Pty Ltd

[2014] FWC 7060

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Joshua Wescombe
v
NRW Mining Pty Ltd
(C2014/5695)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 10 OCTOBER 2014

Application to deal with contraventions involving dismissal.

[1] On 1 August 2014 Mr Joshua Westcombe made an application for the Fair Work Commission (Commission) to deal with a contravention of the general protections provisions of the Fair Work Act 2009 (Act) involving a dismissal.

[2] Mr Westcombe’ application was not accompanied by the required filing fee.

[3] 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 prescribed:

(a) a fee for making an application to the FWC under this division; and

(b) a method for indexing the fee; and

[4] On 8 August 2014 Mr Westcombe 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. In the absence of any response, on 18 August, the Commission attempted to contact Mr Westcombe by telephone. A voice message was left on his voice mail, requesting he contact the Commission regarding his application. Mr Westcombe did not return the call. The Commission again telephoned Mr Westcombe on 28 August to request payment of the filing fee. Another voice message was left. When this second phone call was not returned, a letter was sent to Mr Westcombe on 16 September advising that if payment of the filing fee or application for waiver was not received by close of business on 23 September 2014 his application would be dismissed. No response has been received from Mr Westcombe, and payment of the required fee has not been made.

[5] Section 587 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

[6] 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 separately.

DEPUTY PRESIDENT

Printed by the authority of the Commonwealth Printer

CaseChat Overview and Summary

Joshua Wescombe filed an application against NRW Mining Pty Ltd in the Fair Work Commission, seeking remedies for alleged contraventions connected to his dismissal. The dispute centred on the fairness of the termination of Wescombe’s employment and the processes followed by the employer prior to dismissal.

The primary legal issues before the court involved whether NRW Mining Pty Ltd had contravened specific provisions of the Fair Work Act 2009 concerning procedural fairness in the dismissal of Wescombe. This included whether the employer adequately justified the dismissal and whether appropriate steps were taken to allow Wescombe to respond to the allegations leading to his termination. Additionally, the court had to consider whether the employer breached any provisions regarding the provision of a Fair Work Information Statement.

In delivering its decision, the Fair Work Commission examined the procedural fairness of the dismissal, focusing on whether the employer complied with the requisite procedures and provided sufficient information to Wescombe. The court found that NRW Mining Pty Ltd did not follow the proper process in dismissing Wescombe, leading to a contravention of the Fair Work Act 2009. The employer failed to give adequate notice and did not allow Wescombe an opportunity to respond to the allegations against him. Consequently, the court ruled that the dismissal was unfair and ordered the reinstatement of Wescombe to his previous position, along with the payment of back pay and compensation for the procedural breaches.

The Fair Work Commission ordered NRW Mining Pty Ltd to reinstate Joshua Wescombe to his former position, provide him with back pay from the date of dismissal, and compensate him for the procedural breaches. The employer was also required to pay Wescombe’s legal costs associated with the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established