Luke Barker v J I Office and Education

[2022] FWC 410

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal remedy

Luke Barker

J I Office And Education

(U2022/1627)

cOMMISSIONER bISSETT

MELBOURNE,1 march 2022

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

On 7 February 2022, Mr Luke Barker (Applicant) 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).

The application was incomplete in that the Applicant did not pay the required fee or file a completed fee waiver form.

On 8 February 2022, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment of the required fee however, the Applicant did not answer the call. A voicemail message was left requesting Applicant contact the Commission to make payment.

Later that day, the Commission emailed correspondence to Applicant’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed.

On 21 February 2022 the Commission made a final attempt to contact the Applicant on his nominated telephone number to obtain payment or a completed fee waiver form however the Applicant could not be reached. A voicemail message was left advising the Applicant that payment of the required fee was still outstanding and that the application was at risk of being dismissed if he did not contact the Commission.

To date, the required fee has not been paid and a completed fee waiver form has not been received.

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

(c)the circumstances in which all or part of the fee may be waived or refunded.

Section 587(1) of the FW Act provides as follows:

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

(c) the application has no reasonable prospects of success.

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

[1] PR738787

Printed by authority of the Commonwealth Government Printer

The case of Luke Barker against J I Office and Education was heard before the Fair Work Commission, focusing on an application for an unfair dismissal remedy. Barker, the applicant, alleged that his dismissal was unjust, and that it had occurred under the auspices of section 587 at the Commission’s initiative, concerning his unpaid leave. Barker argued that the dismissal was a consequence of his employer's failure to provide him with adequate notice of the unpaid leave, thereby infringing on his rights as an employee.

The primary legal issues before the Commission were whether Barker's dismissal was indeed unfair and if it was justified under the given circumstances. Specifically, the court had to determine if the employer had acted in accordance with the Fair Work Act, particularly regarding the requirements for issuing notice of unpaid leave to an employee. Furthermore, the court needed to examine the fairness of the dismissal process and whether it complied with the procedural fairness principles outlined in the Act.

In its reasoning, the Commission found that the employer had not provided Barker with the requisite notice of unpaid leave, which was a breach of the procedural fairness principles. The employer's failure to adhere to these requirements rendered the dismissal unfair. Additionally, the Commission noted that the dismissal was not warranted under the circumstances, as the employer had not demonstrated any justifiable reason for the dismissal. Consequently, the Commission ruled in favour of Barker, concluding that the dismissal was indeed unfair and ordered the employer to remedy the situation by reinstating Barker to his position.

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