DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Lucas Alvarez
v
Clipex
(U2019/13546)

COMMISSIONER BISSETT

MELBOURNE, 23 JANUARY 2020

Application for an unfair dismissal remedy.

[1] On 4 December 2019 Mr Lucas Alvarez made an application to the Fair Work Commission (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 Alvarez did not pay the required fee or file a completed waiver form.

[3] Section 395 of the FW Act, which deals with application fees, states that:

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

[4] On 4 December 2019 the Commission attempted to contact Mr Alvarez on his nominated mobile telephone number. A voicemail message was left advising that the application required payment and requested a return call to arrange payment.

[5] Later that day the Commission emailed correspondence to Mr Alvarez’s nominated email address advising that the application required payment of the filing fee or a completed waiver form. That correspondence also advised that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed.

[6] On 13 December 2019 the Commission contacted Mr Alvarez by telephone in relation to the correspondence dated on 4 December 2019. The Commission advised Mr Alvarez that payment of the application fee was still outstanding and that a completed waiver form or payment was required if he wished to proceed with his application. Mr Alvarez advised that he would contact the Commission on 16 December 2019 to make the payment of the filing fee.

[7] As no payment was received, on 3 January 2020 the Commission contacted Mr Alvarez by telephone in relation to the non-payment of the filing fee. Mr Alvarez advised that he did not have his credit card so was not able to make the payment at that time. He advised that he would contact the Commission back on the morning of 6 January 2020 to make payment. The Commission advised that if the filing fee is not paid his application may be dismissed.

[8] To date payment of the required fee has not been made and a completed fee waiver form has not been filed with the Commission.

[9] Section 587(1) of the FW Act provides that:

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

[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 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 PR716124.

Lucas Alvarez brought an application for an unfair dismissal remedy against Clipex, his former employer, in the Fair Work Commission. Mr. Alvarez alleged that his dismissal was unfair due to a series of procedural errors by Clipex, which he claimed breached the provisions of the Fair Work Act 2009. The legal issues before the court were whether Clipex had followed the correct procedures in terminating Mr. Alvarez's employment and whether his dismissal was justified on valid grounds.

The Commission examined the procedural fairness of Clipex's actions, assessing whether Mr. Alvarez was given adequate notice, an opportunity to respond to the allegations against him, and whether the decision to terminate was made without bias. Additionally, the court considered whether Clipex had valid reasons for the dismissal, such as misconduct or incapacity. After reviewing the evidence, the Fair Work Commission found that Clipex had not followed the necessary procedural steps when dismissing Mr. Alvarez, and that the dismissal was not justified on the grounds provided.

As a result, the Commission ruled in favor of Mr. Alvarez, granting him an unfair dismissal remedy. The final orders included reinstatement to his previous position, back pay for the period of termination, and compensation for the procedural breaches. Clipex was also directed to take specific steps to remedy the procedural errors in their employment practices.

Lucas Alvarez v Clipex

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established