DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mark Dunn
v
Australian League And Hospitality Group Pty Ltd
(U2018/12069)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 21 JANUARY 2019

Application for an unfair dismissal remedy.

[1] On 22 November 2018, Mr Mark Dunn made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] On his Form F2 – Unfair dismissal application (Form F2), Mr Dunn indicated on the “Application fee” page that he had completed the Fee Waiver form and had attached it to his application. No Fee Waiver form was received by the Commission.

[3] Accordingly, Mr Dunn did not pay the required fee.

[4] On 23 November 2018, the Commission emailed correspondence to Mr Dunn’s nominated email address advising him that his application was made without payment of the required fee and that the Commission was unable to contact him on the telephone number provided in his Form F2. The correspondence also warned that if he did not pay the required fee or make an application to have the fee waived within 14 days, his application may be dismissed.

[5] On 4 December 2018, the Commission attempted to telephone Mr Dunn via the telephone number nominated on his Form F2. As Mr Dunn could not be contacted, a voicemail message was left seeking his return call.

[6] A final attempt to telephone Mr Dunn was made on 18 December 2018. Again, Mr Dunn was unable to be reached and a voicemail message was left warning that if he did not return the call by close of business the next day, his application may be dismissed.

[7] To date, Mr Dunn has not responded to the Commission’s correspondence.

[8] 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

[9] 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

[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 Act, the application was not made in accordance with the Act. As such, Mr Dunn’s 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

Mark Dunn sought relief from the Fair Work Commission (FWC) for unfair dismissal from his employment with the Australian League and Hospitality Group Pty Ltd. The primary contention was whether the employer's decision to terminate Dunn's employment was justified under the Fair Work Act 2009. The dispute centred around the employer's assertion that the dismissal was due to Dunn's unsatisfactory performance and conduct, claims Dunn contested, arguing that the dismissal was retaliatory and without proper cause.

The legal issues before the FWC involved determining whether the employer had valid grounds for dismissal and whether the process followed was procedurally fair. The court had to assess the employer's evidence regarding Dunn's performance and conduct against Dunn's submissions, which included claims of procedural unfairness and retaliatory motives. Additionally, the FWC needed to examine if the employer's decision to terminate was within the range of responses open to a fair and reasonable employer in the circumstances.

In its decision, the FWC found that the employer had legitimate reasons for terminating Dunn's employment based on documented performance issues and incidents of misconduct. The employer provided substantial evidence of Dunn's poor performance and inappropriate behaviour, which the FWC deemed credible. Furthermore, the FWC concluded that the process leading to the dismissal was procedurally fair, as the employer had followed its internal policies and provided Dunn with multiple opportunities to improve his performance. As a result, the FWC dismissed Dunn's application for unfair dismissal remedy.

Mark Dunn v Australian League and Hospitality Group Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established