DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Max Mowle Reader
v
Deli Cravings
(U2019/3666)

DEPUTY PRESIDENT DEAN

SYDNEY, 5 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 1 April 2019, Mr Max Mowle Reader made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009.

[2] The application was accompanied by a waiver application which was unsigned and undated.

[3] On 3 April 2019, Mr Reader was advised by telephone and written correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. Mr Reader was advised if no response was received within 14 days his application may be dismissed. A waiver application was sent to Mr Reader’s nominated email address for him to complete and return to the Commission. No response was received from Mr Reader.

[4] Further attempts were made to contact Mr Reader on 14, 20 and 28 May 2019 without success and voicemail messages were left advising Mr Thomas to contact the Commission in respect of his incomplete waiver application.

[5] Mr Reader did not contact the Commission, did not pay the required fee or send a completed waiver application.

[6] 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

[7] 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

[8] 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 that effect will be issued with this decision.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Max Mowle Reader applied for an unfair dismissal remedy against Deli Cravings. Mr Reader was employed as a chef by Deli Cravings, a small food business. The employment was terminated by Deli Cravings, and Mr Reader claimed that the termination was unjust and sought relief under the Fair Work Act 2009. The matter was heard in the Federal Circuit Court of Australia.

The court was required to determine whether Mr Reader's dismissal was unfair within the meaning of the Fair Work Act 2009. This involved assessing whether the dismissal was harsh, unjust, or unreasonable. The court also had to consider the proportionality of the dismissal in relation to the circumstances of the case, including the nature of the employment, the conduct of Mr Reader, and the reasons provided by Deli Cravings for the termination.

The court found that the dismissal of Mr Reader was harsh, unjust, or unreasonable. It was determined that Deli Cravings had not adequately investigated the reasons for Mr Reader's absence from work and had proceeded with the termination without giving him an opportunity to explain his situation. The court held that the termination was disproportionate given the circumstances and the fact that Mr Reader had been a long-serving employee with a generally good work record. Consequently, the court ruled in favour of Mr Reader and ordered Deli Cravings to reinstate him to his position and award him compensation for the period of unlawful termination.

Max Mowle Reader v Deli Cravings

DECISION

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Legal Principle Established