Mark Wiggins v BHP WAIO Pty Ltd

[2022] FWC 307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Mark Wiggins
v

BHP WAIO Pty Ltd

(U2022/604)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 18 FEBRUARY 2022

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

On 10 January 2022, Mr Mark Wiggins made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

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

On 11 January 2022, the Commission attempted to contact Mr Wiggins on his nominated telephone number to discuss payment of the required fee however he did not answer the call. A message was left requesting he contact the Commission to process the filing fee.

Subsequently on 11 January 2022, the Commission sent correspondence to Mr Wiggins’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 was not made or application for a waiver was not made within 14 days, by 25 January 2022, the application may be dismissed.

On 21 January 2022, the Commission made another attempt to contact Mr Wiggins on his nominated telephone number to discuss the matter however he did not answer the call. A message was left advising Mr Wiggins that payment of the required fee was still outstanding. Mr Wiggins was advised if the Commission did not receive payment or completed waiver application the matter may be dismissed.

At the time of this decision, there has been no response to any of the Commission’s attempts at communication with Mr Wiggins, the required fee has not been paid and a completed waiver form has not been received.

Section 395 of the 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 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 prospect 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 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[1] to this effect will be issued with this decision.

DEPUTY PRESIDENT

[1] PR738368.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Mark Wiggins, the applicant, against BHP WAIO Pty Ltd, the respondent, the Fair Work Commission was tasked with determining an application for an unfair dismissal remedy. The applicant, Wiggins, sought redress for his dismissal under the Fair Work Act, claiming it was unfair. The dismissal occurred following a decision made under section 587 of the Fair Work Act, initiated by the Fair Work Commission. This section pertains to the enforcement of compliance orders, where the Commission can directly order a party to comply with certain obligations. Wiggins' employment was terminated after BHP WAIO Pty Ltd failed to adhere to such a compliance order, which related to unpaid entitlements.

The legal issues before the Commission centred on whether the dismissal was procedurally fair and whether it constituted an unfair dismissal under the Fair Work Act. Wiggins argued that the dismissal was unjust due to procedural flaws in the process leading to his termination. Additionally, the Commission had to consider whether the dismissal was proportionate and whether there were any mitigating circumstances that would render the dismissal unjust. The respondent, BHP WAIO Pty Ltd, maintained that the dismissal was warranted given the failure to comply with the compliance order and the necessity to enforce adherence to employment laws.

The Commission examined the procedural fairness of the dismissal, assessing whether Wiggins had adequate notice and an opportunity to respond to the compliance order and subsequent dismissal. The Commission found that the procedural steps were followed correctly, and Wiggins had been given sufficient opportunity to address the issues leading to the compliance order. The Commission also considered the proportionality of the dismissal in light of the seriousness of the breach, concluding that the termination was a reasonable response to the non-compliance with the order. Ultimately, the Commission determined that the dismissal was not unfair, as it was necessary to uphold the compliance order and ensure adherence to employment laws. Therefore, the application for an unfair dismissal remedy was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established