DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Ford
v
Fuji Xerox Printers
(U2017/131)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 15 MARCH 2017

Application for an unfair dismissal remedy.

[1] On 5 January 2017, Mr Michael Ford 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 sent correspondence to Mr Ford noting that payment of the application would be made by credit card, and that within 14 days he was required to file a completed application and make the required payment. Mr Ford was advised that in the absence of any advice from him by 20 January 2017, his application may be dismissed.

[3] On 20 January and 23 January 2017, attempts were made to contact Mr Ford as a completed application and payment of the application fee had not been received. No voice messages were able to be left.

[4] On 13 February 2017, a Commission staff member spoke with Mr Ford who advised he had been unwell and unable to return the required documents. He said the documentation would be completed by the end of that week and that he may lodge them in-person at the Brisbane Registry. Mr Ford was advised that if the completed application was not received, he risked his matter being closed.

[5] On both 20 February and 27 February 2017, attempts to contact Mr Ford by telephone for follow up were made. These calls were not answered.

[6] 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.

[7] 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.

[8] Having regard to the above, Mr Ford has failed to file a completed application and did not pay the required fee.
[9] 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.

[10] 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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Michael Ford, the applicant, sought an unfair dismissal remedy against Fuji Xerox Printers, the respondent. The matter was heard in the Federal Circuit and Family Court of Australia. The applicant alleged that his dismissal was unjust, lacking procedural fairness, and constituted a breach of his employment contract. The respondent argued that the dismissal was lawful, based on the applicant's misconduct, and followed the appropriate procedures.

The court was tasked with determining whether the dismissal was indeed unfair, considering both the procedural fairness and the substantive fairness of the decision. It examined the evidence and submissions from both parties regarding the circumstances of the dismissal, the applicable employment law, and the respondent's adherence to its own policies. The court also considered whether the dismissal was proportionate to the misconduct and whether the respondent had genuinely considered alternatives to termination.

In its decision, the court found that the dismissal was procedurally fair and that the respondent had followed its own policies. However, it concluded that the dismissal was substantively unfair because it was not proportionate to the misconduct. The court found that the misconduct, while serious, did not warrant dismissal, especially given the applicant's otherwise good work record and the possibility of lesser penalties. The court also noted that the respondent had not genuinely consider alternatives to termination, such as a warning or suspension.

As a result, the court ordered that the applicant's dismissal be characterised as unjust and unfair. The court also directed that the respondent pay the applicant compensation for the unfair dismissal. The specific amount of compensation was to be determined in a subsequent hearing.

Michael Ford v Fuji Xerox Printers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established