DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kane Milham
v
D n R Henderson
(U2020/7410)

COMMISSIONER BISSETT

MELBOURNE, 22 JUNE 2020

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

[1] On 29 May 2020, Mr Kane Milham 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 was incomplete in that Mr Milham did not pay the required fee or file a completed fee waiver form.

[3] Later on 29 May 2020, the Commission attempted to contact Mr Milham on his nominated telephone number to discuss payment however the call could not be connected at that time.

[4] Later that day, the Commission sent email correspondence to Mr Milham’s nominated email address attaching a fee waiver form and advising that his application required payment of the filing fee or a completed fee waiver form if he wished to proceed with the application. The correspondence also warned that if he did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed. This was followed by an SMS notification sent to Mr Milham’s nominated telephone number which sought a return call to discuss payment. The Commission also sent an SMS notification to Mr Milham’s nominated telephone number which sought a return call to discuss payment.

[5] On 1 June 2020 Mr Milham returned the Commission’s call. He was advised that that the Commission requires payment or a completed fee waiver form if he wishes to proceed with the application. The Commission informed Mr Milham that if he wanted to file a fee waiver form he would need to do that as soon as possible. Mr Milham did not make payment or file a completed fee waiver form.

[6] On 10 June 2020 the Commission made a final attempt to contact Mr Milham on his nominated telephone number to discuss payment. Mr Milham did not answer the call. A voicemail message was left advising him that payment of the required fee was still outstanding and to contact the Commission.

[7] Later that day, Mr Milham telephoned the Commission. He said he wanted to “leave” the application. The Commission advised Mr Milham to do this he would need to withdraw the application. Mr Milham said he would think about it.

[8] To date Mr Milham has not paid the required fee nor has he filed a completed fee waiver form. He has not otherwise contacted the Commission to advise that he wants to withdraw his application.

[9] 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

[10] Section 587(1) of the FW 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

[11] 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

Printed by authority of the Commonwealth Government Printer

1 PR720384.

In the matter of Kane Milham v D n R Henderson, the Federal Circuit and Family Court of Australia was presented with an application for an unfair dismissal remedy. The applicant, Kane Milham, sought relief against his former employer, D n R Henderson, following his dismissal under section 587 of the Fair Work Act 2009. The crux of the dispute centred on the fairness of the dismissal, with Milham arguing that his termination was unjust and should be rectified by the court. The court was tasked with determining whether the dismissal was unfair and whether to grant the relief sought by Milham.

The primary legal issue before the court was whether Milham's dismissal was unfair within the meaning of the Fair Work Act. The court needed to assess whether the employer had just cause for dismissal and if the process leading to the termination was procedurally fair. The court also had to consider whether the dismissal was a proportionate response to the alleged misconduct or whether it represented an unreasonable exercise of the employer's power.

The court meticulously evaluated the evidence presented by both parties, focusing on the procedural fairness of the dismissal process and the substantive fairness of the decision to terminate. The court found that D n R Henderson had followed the correct procedures and provided Milham with adequate opportunity to respond to the allegations against him. Additionally, the court concluded that the decision to dismiss Milham was based on a reasonable belief that he had engaged in misconduct warranting such action. Consequently, the court dismissed Milham's application for an unfair dismissal remedy, ruling that the employer's actions were both procedurally and substantively fair.

Kane Milham v D n R Henderson

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established