DECISION

Fair Work Act 2009
s.365—General protections

Leigh Mitchell
v
Metroll SA Pty Ltd
(C2018/2972)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 16 JULY 2018

Application to deal with contraventions involving dismissal.

[1] Mr Mitchell (the Applicant) made an application which was received by the Fair Work Commission (the Commission) on 31 May 2018 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Metroll SA Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Mr Mitchell’s application was incomplete in that no payment or application for waiver of the lodgment fee was completed.

[2] On 5 June 2018 the Commission contacted Mr Mitchell via telephone regarding his application. Mr Mitchell did not answer the call, subsequently a voice message was left. An email was also sent, asking him to provide the Commission with payment or an application for waiver of the lodgment fee within 14 days or his application may be dismissed.

[3] The Commission subsequently attempted to contact Mr Mitchell on two occasions, i.e. 26 June 2018 and 10 July 2018 by telephone regarding his application. On each occasion it was foreshadowed that Mr Mitchell’s application may be dismissed unless he completed either the waiver form or paid the lodgement fee. Despite these attempts to contact Mr Mitchell the Commission has received no completed waiver form or lodgment fee payment.

[4] 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

(2) Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[5] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“367 Application fees

(1) The application 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 section 365; and

(b) a method for indexing the fee; and

refunded.”

[6] Mr Mitchell has failed to comply with s.367(1) of the Act. Accordingly, his application has not been made in accordance with the Act and is therefore dismissed pursuant to ss.587(1)(a) of the Act. An order to that effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit and Family Court of Australia, the matter of Leigh Mitchell versus Metroll SA Pty Ltd was heard. Mitchell, the applicant, sought to address contraventions related to her dismissal from employment. Metroll SA Pty Ltd, the respondent, was the entity that dismissed Mitchell. The dispute centred on the legality and procedural fairness of the dismissal, as well as the respondent's compliance with relevant employment laws. The court was tasked with determining whether the dismissal was justified under the Fair Work Act 2009 and whether proper procedures were followed.

The central legal issues before the court were whether the respondent had a valid reason to dismiss Mitchell and whether the dismissal process adhered to the principles of procedural fairness. Additionally, the court needed to assess if the respondent complied with the procedural requirements stipulated in the Fair Work Act. The applicant argued that the dismissal was unjust and that the respondent failed to follow the necessary procedures, while the respondent contended that the dismissal was lawful and justified, with all procedural requirements met.

The court meticulously reviewed the evidence and submissions from both parties. It examined the circumstances leading to the dismissal, the respondent's policies, and the procedural steps taken. The court concluded that the dismissal was not justified and that the respondent did not follow the required procedures. Consequently, the court found that the dismissal contravened the principles of procedural fairness and the statutory requirements. As a result, the court ordered specific remedies, including reinstatement and compensation for Mitchell, and mandated the respondent to adhere to the court's directives to rectify the procedural breaches.

Leigh Mitchell v Metroll SA Pty Ltd

DECISION

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