DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Khurram Shahzad
v
RCR Tomlinson Group T/A EPC Engineering Division
(U2019/9645)

COMMISSIONER BISSETT

MELBOURNE, 1 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 29 August 2019, Mr Khurram Shahzad made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application was incomplete in that Mr Shahzad did not lodge a fee waiver application and did not pay the required fee.

[3] On 2 September 2019, Mr Shahzad was advised by telephone that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. Mr Shahzad requested he be sent a fee waiver application to fill out. This was emailed to him shortly after his phone call with the Fair Work Commission (the Commission), together with correspondence which advised that if he does not pay the application fee or make an application to have the fee waived within 14 days of the date of the letter, his application may be dismissed.

[4] Section 395, 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

[5] On 18 September 2019 the Commission called Mr Shahzad in relation to the correspondence sent to him on 2 September 2019. Mr Shahzad advised that he would be sending in a completed waiver form. Mr Shahzad was advised that if this was not received then his application may be dismissed by a Member of the Commission and a decision would then be publicly available.

[6] On 27 September 2019 the Commission attempted to telephone Mr Shahzad but was unsuccessful. A voice message was left for Mr Shahzad to contact the Commission in regard to his application.

[7] No response has been received from Mr Shahzad and payment of the required fee has
not been made.

[8] 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

[9] 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 giving effect to this decision will be issued separately.

COMMISSIONER

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1 PR712889

In the case of Khurram Shahzad v RCR Tomlinson Group T/A EPC Engineering Division, the applicant, Khurram Shahzad, sought an unfair dismissal remedy against his former employer, RCR Tomlinson Group T/A EPC Engineering Division. The dispute arose from the termination of Shahzad's employment under circumstances that he claimed were unjust. The matter was heard in the Fair Work Commission, the tribunal with jurisdiction over employment disputes in Australia.

The central legal issue before the Commission was whether Shahzad's dismissal was harsh, unjust, or unreasonable, as defined by section 387 of the Fair Work Act 2009. Shahzad argued that the termination of his employment was unjust and did not meet the procedural fairness required by the Act. The employer, on the other hand, contended that the dismissal was justified and followed proper procedures.

The Commission considered various factors, including the nature of the employment, the conduct of Shahzad, and the employer's response to the allegations against him. The Commission found that the employer had acted reasonably in terminating Shahzad's employment. It concluded that Shahzad's dismissal did not meet the threshold for unfairness under the Act. The application was therefore dismissed.

The Fair Work Commission's decision highlights the importance of procedural fairness in employment terminations. The Commission's ruling underscores that employers must ensure that dismissals are justified and that employees are given an opportunity to respond to allegations against them. Shahzad's application for an unfair dismissal remedy was unsuccessful, and the dismissal was deemed to be lawful and fair.

Khurram Shahzad v RCR Tomlinson Group T/A EPC Engineering Division

DECISION

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