DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Malcholm Brookes
v
Northstate Woodwork Company Pty Ltd
(U2018/4018)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 MAY 2018

Application for an unfair dismissal remedy.

[1] On 17 April 2018, Mr Malcholm Brookes made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Brookes filed an application for fee waiver, however the form was incomplete.

[3] On 19 April 2018, the Fair Work Commission telephoned Mr Brookes and advised the application for fee waiver was incomplete. Mr Brookes was told how to locate the application form on the Commission’s website and he advised he would submit it that afternoon. Following the phone call, an email was sent to Mr Brookes which confirmed the telephone discussion and further noted that if the fee was not paid or an application for fee waiver was not filed within 14 days, his application may be dismissed.

[4] On 30 April 2018, a further telephone call was made to Mr Brookes regarding the outstanding application fee. Mr Brookes advised he had had trouble with his computer and had lost the documents he completed. Mr Brookes was again talked through the process of downloading a new application for fee waiver and was given the email address he would need to send it to. Mr Brookes was advised if the application for fee waiver was not received or the fee remained unpaid, his application was at risk of being dismissed.

[5] On 8 May and 9 May 2018, two further attempts to contact Mr Brookes were made, however there was no answer and no option to leave a voicemail. The Commission’s telephone number was sent as a text message on each occasion.

[6] Section 395 of the Act, 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

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

[7] 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

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

[8] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Malcolm Brookes applied for an unfair dismissal remedy against Northstate Woodwork Company Pty Ltd. The applicant alleged that he was unfairly dismissed due to his involvement in union activities. The company, on the other hand, argued that the dismissal was due to poor performance and not related to any union activities.

The primary legal issue was whether the dismissal was genuinely due to the reasons provided by the employer or if it was because of the applicant's union activities, which is protected under the Fair Work Act 2009. The Commission had to determine if the employer's reasons for dismissal were genuine and not a pretext for union-related discrimination.

The Commission found that the employer did not provide sufficient evidence to support the reasons given for the dismissal. The employer's claim of poor performance was not substantiated, and there was evidence that the applicant had been performing satisfactorily prior to the dismissal. The Commission also considered the timing of the dismissal in relation to the applicant's union activities, which suggested a connection. Therefore, the Commission ruled that the dismissal was unfair and ordered the company to reinstate the applicant to his previous position and pay compensation.

Malcholm Brookes v Northstate Woodwork Company Pty Ltd

DECISION

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