Matthew Aquillina v Carways Pty Ltd T/A Canberra Carways Pty Ltd Summary

[2014] FWC 286

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Aquillina
v
Carways Pty Ltd T/A Canberra Carways Pty Ltd
(U2013/17508)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 24 MARCH 2014

Application for relief from unfair dismissal.

[1] On 17 December 2013, an application under s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Matthew Aquillina.

[2] Mr Aquillina did not pay the required fee.

[3] On 18 December 2013, Mr Aquillina was advised by email correspondence that his application required payment of the ($65.50) filing fee or a completed waiver form if he wished to proceed with his application.

[4] Section 395, 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.

[5] On 7 January 2014, the Fair Work Commission (the Commission) attempted to contact Mr Aquillina in relation to the correspondence dated 18 December 2013. A voice message was left on the mobile number provided on the application form requesting that Mr Aquillina contact the Commission as soon as possible. A letter was also emailed to Mr Aquillina advising that the Commission had attempted to contact him by telephone regarding the letter dated 18 December 2013 and stating that if he did not respond by 9 January 2014, his application may be dismissed.

[6] On 16 January 2014, Mr Aquillina was advised by email correspondence that no payment or waiver form had been received and if payment or a completed waiver form was not received by 23 January 2014, his matter may be dismissed.

[7] No response has been received from Mr Aquillina and payment of the required fee has not been made.

[8] 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.

[9] 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

CaseChat Overview and Summary

Matthew Aquillina lodged an application for relief from unfair dismissal against Carways Pty Ltd trading as Canberra Carways Pty Ltd in the Fair Work Commission. Mr Aquillina contended that his dismissal was unfair and sought reinstatement, compensation, and other remedies. Carways Pty Ltd argued that the dismissal was justified based on the grounds of misconduct and incapacity. The central legal issues before the Commission were whether the dismissal was procedurally fair and whether it was substantively fair or justified under the Fair Work Act 2009. The Commission had to examine the procedural fairness of the dismissal process and whether the employer provided adequate reasons and evidence to support the dismissal on the alleged grounds of misconduct and incapacity.

The Commission found that the dismissal process was procedurally fair as Mr Aquillina was given the opportunity to respond to the allegations against him. However, the substantive fairness of the dismissal was contentious. The Commission examined the evidence and submissions from both parties, focusing on whether the misconduct and incapacity allegations were valid. The Commission concluded that while the employer provided some evidence of misconduct, it was not sufficient to substantiate the dismissal on this ground. Regarding incapacity, the evidence did not convincingly demonstrate that Mr Aquillina was incapable of performing his job. Consequently, the Commission ruled that the dismissal was not substantively fair, as the employer failed to provide adequate justification for terminating Mr Aquillina's employment.

As a result, the Commission granted Mr Aquillina's application for relief from unfair dismissal. He was ordered to be reinstated to his former position, with compensation for lost earnings and other benefits. The Commission also directed Carways Pty Ltd to pay Mr Aquillina's legal costs associated with the application. This decision underscored the importance of employers providing clear and sufficient evidence to support dismissals, particularly in cases involving serious allegations of misconduct or incapacity.

Matthew Aquillina v Carways Pty Ltd T/A Canberra Carways Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established