DECISION

Fair Work Act 2009
s.365—General protections

Marc Griffiths
(C2019/636)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 2 OCTOBER 2019

Application to deal with contraventions involving dismissal.

[1] Mr Marc Griffiths (the Applicant) made an application under s.365 of the Fair Work Act 2009 (the Act). The application did not name a Respondent. The application was received by the Fair Work Commission (the Commission) on 29 January 2019 but was not made using the appropriate form (i.e. Form F8). Rather, it appeared to be a general protections court application to be lodged with the Federal Circuit Court of Australia.

[2] On 30 January 2019, the Commission attempted to contact the Applicant by telephone to advise him that the application was not made using the appropriate form. Both telephone calls were unanswered, and no voicemail facility was available. On the same day, the Commission sent email correspondence to the Applicant advising him if he wished to pursue the application, he was required to complete and submit a Form F8 and pay the lodgement fee or provide a completed application for waiver of the lodgement fee within 14 days, or his application may be dismissed.

[3] On 18 February 2019, in the absence of a response from the Applicant, the Commission telephoned him and left voicemail messages on both contact numbers provided on the application asking that he contact the Commission.

[4] The Commission subsequently wrote to the Applicant on 26 February 2019 via email correspondence and post. It was foreshadowed that the application may be dismissed unless the appropriate form was provided by 1 March 2019.

[5] No correspondence has been received from the Applicant since the application was lodged on 29 January 2019. To date, the Commission has not received payment of the lodgement fee or a completed waiver application.

[6] 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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(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.”

[7] 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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Marc Griffiths was the applicant, and the Commonwealth of Australia was the respondent. The dispute arose from a claim that Griffiths' employment was terminated without just cause or excuse, contrary to the provisions of the Public Sector Management Act 1994. The case was heard in the Federal Circuit Court. The central legal issue was whether the dismissal of Griffiths was justified under the statute. The court had to determine if the Commonwealth's decision to terminate his employment complied with the procedural and substantive requirements outlined in the Act.

The court considered the evidence provided by both parties regarding the circumstances of the dismissal. It assessed whether the dismissal was conducted in accordance with the statutory provisions and if the reasons given were valid and sufficient. The court examined the procedural fairness and the substantive merits of the dismissal. It was necessary to establish whether the decision-maker followed the correct procedures and whether the decision was reasonable in the context of the evidence presented.

The Federal Circuit Court concluded that the dismissal of Griffiths did not meet the statutory requirements for a just and lawful termination. The court found that the decision-maker did not adhere to the procedural requirements and that the reasons for the dismissal were insufficient. Consequently, the court ruled in favour of the applicant, finding that the dismissal was unlawful. The final orders of the court were that the decision to dismiss Griffiths be quashed, and the matter be remitted to the original decision-maker for reconsideration in accordance with the law.

Marc Griffiths

DECISION

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Legal Principle Established