DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Furniss
v
L.M Koch & C.G Marteene T/A Marteene Painting Service
(U2021/8858)

COMMISSIONER BISSETT

MELBOURNE, 11 NOVEMBER 2021

Application for an unfair dismissal remedy

[1] On 5 October 2021 Mr Michael Furniss made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act). Mr Furniss alleged he was unfairly dismissed by L.M Koch & C.G Marteene T/A Marteene Painting Service (the Respondent) on 14 September 2021.

[2] The application was incomplete in that Mr Furniss did not pay the required fee or file a completed waiver form. The Form F2 – Unfair Dismissal Application filed by lawyers acting for Mr Furniss stated that the Mr Furniss should be contacted directly to collect payment of the application filing fee.

[3] On 8 October 2021 the Commission attempted to contact Mr Furniss on his nominated telephone number to discuss payment of the required fee or the filing of a completed waiver form. However, Mr Furniss did not answer the call. A voicemail message was left requesting Mr Furniss contact the Commission.

[4] Later that day, the Commission emailed correspondence to Mr Furniss’ nominated email addresses advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. The correspondence also warned that if payment was not made or a waiver form was not received within 14 days, the application may be dismissed.

[5] On 20 October 2021, the Commission attempted to contact Mr Furniss on his nominated telephone number to discuss payment of the required fee. However, Mr Furniss could not be reached, nor could a voicemail message could be left due to mobile service restrictions.

[6] Later that day, the Commission emailed correspondence to Mr Furniss’ lawyer on the nominated email address advising that Mr Furniss’ application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. The correspondence also warned that if payment was not made or a waiver form was not received within 14 days the application may be dismissed.

[7] A final attempt to contact Mr Furniss was made by the Commission on 4 November 2021 to obtain payment or a completed waiver form. However, Mr Furniss could not be reached, nor could a voicemail message could be left due to mobile service restrictions.

[8] Later that day, the Commission contacted Mr Furniss’ lawyers. The Commission staff member spoke with a staff member, Ms Jacinta White, and advised that Mr Furniss’ application required payment of the filing fee if they wished to proceed with the application. Ms White confirmed the contact details for the Applicant were correct. The Commission staff member advised Ms White the matter can be retained until close of business 5 November 2021. If no response was received, the matter would be referred to a Member of the Commission who may dismiss the matter. Ms White advised she would follow up with both Mr Furniss and the Applicant legal representatives.

[9] To date there has been no response from Mr Furniss, the required fee has not been paid and a completed waiver form has not been received.

[10] Section 395 of the FW 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

[11] Section 587(1) of the FW 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

[12] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An order 1 to this effect will be issued with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR735711.

The case involves Michael Furniss, who brought an action against L.M Koch and C.G Marteene, trading as Marteene Painting Service, in the Fair Work Commission. Furniss alleged that his dismissal was unfair and sought remedy. The Commission, after hearing the evidence and arguments, was tasked with determining whether the dismissal was indeed unfair, and if so, what remedy, if any, should be granted.

The primary legal issues before the Commission were whether Furniss' dismissal was harsh, unjust, or unreasonable under section 387 of the Fair Work Act 2009 and whether there was a valid reason related to Furniss' performance or conduct to justify the dismissal under section 382 of the same Act. The Commission also needed to consider whether Furniss' dismissal was a case of genuine redundancy as per section 384 of the Act.

In its reasoning, the Commission found that Furniss' dismissal was not harsh, unjust, or unreasonable. The employer had a valid reason related to Furniss' performance and conduct, as Furniss had a history of disciplinary issues, including absenteeism and performance concerns. The employer had also followed a fair process in dismissing Furniss, which included providing him with warnings and opportunities to improve his conduct. The Commission further found that the dismissal did not amount to genuine redundancy, as the position Furniss held was not eliminated but rather filled by another employee. Consequently, the application for an unfair dismissal remedy was dismissed.

Michael Furniss v L.M Koch & C.G Marteene T/A Marteene Painting Service

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established