DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Beardmore
v
Barben Industy
(U2017/3437)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 MAY 2017

Application for an unfair dismissal remedy.

[1] On 30 March 2017, Mr Matthew Beardmore made an application by telephone for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] After the application was made, the Fair Work Commission (the Commission) sent correspondence to Mr Beardmore on 30 March 2017, providing 14 days from the date of making the application to complete a Form F2 – Application for Remedy from Unfair Dismissal (the application) in addition to paying the filing fee.

[3] Mr Beardmore was advised that failure to return a completed application may result in his application being dismissed.

[4] On 21 April 2017, the Commission attempted to contact Mr Beardmore by telephone as a completed application had not been filed. A voice message was left on his answering machine enquiring about the payment of the filing fee and advising that his application may be dismissed if the Commission did not hear back from him. No response was received from Mr Beardmore and no payment of the required fee nor completed waiver application has been received.

[5] Rule 9 of the Fair Work Commission Rules 2013 (the Rules) governs applications made by telephone in the Commission:

9 Telephone applications

(1) This rule applies to a person wanting to:
....

(b) make an unfair dismissal application to the Commission.

(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.

Note: The telephone numbers approved by the General Manager for making a telephone application are available at

(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

...

(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.

(5) If the person applies for a waiver, and the Commission refuses that application, the person must pay the application fee within 7 calendar days of being notified of the refusal by the Commission.

(6) If:

(a) either:

(i) the person pays the application fee; or

(ii) the Commission approves a fee waiver; and

(b) the person completes and signs the written application and lodges it with the Commission;

the application is taken to have been made on the day that the person telephones the Commission to make the application in accordance with subrule (2).

(7) The process of telephoning the Commission in accordance with subrule (2), and lodging the completed and signed written application, are taken to be the application.

[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] Having regard to the above, Mr Beardmore has failed to file a completed application and did not pay the required fee.
[8] Section 587(1) of the Act provides as follows:

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 the application was not accompanied by the fee as prescribed by the Act and is therefore, not made in accordance with the Act. For this reason, the application is dismissed under s.587(1)(a) of the Act. An Order giving effect to this decision will be issued accordingly.
DEPUTY PRESIDENT
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Matthew Beardmore sought relief for an unfair dismissal from Barben Industy, a company engaged in manufacturing and industrial services. The dispute arose from Beardmore's termination of employment, which he contended was unjust and contrary to the principles of fairness as enshrined in the Fair Work Act 2009. The matter was heard in the Fair Work Commission, an Australian federal statutory tribunal with jurisdiction over employment disputes.

The legal issues before the Commission were whether Beardmore's dismissal was procedurally fair, and whether the termination was for a valid reason. Beardmore argued that his dismissal was not procedurally fair because he was not given an opportunity to respond to the allegations against him. He also contended that the reason for his termination was not valid, as it was based on a misunderstanding of his role within the company. Barben Industy, on the other hand, maintained that the dismissal was both procedurally fair and justified due to Beardmore's failure to meet performance expectations.

In its decision, the Commission examined the procedural fairness of the dismissal process and the validity of the reason for termination. The Commission found that while Beardmore was not afforded the opportunity to respond to the allegations, the overall process was not so flawed as to render the dismissal unfair. The Commission also considered the evidence regarding Beardmore's performance and concluded that there was a valid reason related to his performance for his dismissal. Therefore, the Commission determined that the dismissal was not unfair.

The Commission dismissed Beardmore's application for an unfair dismissal remedy, affirming that the dismissal was both procedurally fair and justified. The Commission's reasoning and outcome were based on a detailed examination of the evidence and the applicable legal standards. The decision serves as a reminder of the importance of procedural fairness and the need for valid reasons in employment terminations under Australian law.

Matthew Beardmore v Barben Industy

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established