DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Terry
v
Mannagum Enterprises
(U2016/7319)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 13 JULY 2016

Application for relief from unfair dismissal.

[1] On 31 May 2016, Mr Michael Terry made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

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

[3] On 31 May 2016, Mr Terry was advised by email correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. The Commission also telephoned Mr Terry and a message was left for him to contact the Commission.

[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 June 2016, the Commission attempted to contact Mr Terry in relation to the correspondence dated 31 May 2016 and a voicemail message was left for Mr Terry to contact the Commission.

[6] On 14 June 2016, the Commission forwarded further correspondence to Mr Terry advising his application required payment of the filing fee. He was also advised that in the absence of any advice being received from him within 14 days, is application may be dismissed.

[7] On 5 July 2016, the Commission again attempted to telephone Mr Terry with no success.

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

[9] 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.

[10] 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

In the case of Michael Terry v Mannagum Enterprises, the Fair Work Commission (FWC) was asked to consider an application for relief from an unfair dismissal. Michael Terry, the applicant, alleged that his dismissal by Mannagum Enterprises, the respondent, was unfair. The dispute centred on whether the dismissal was justified under the Fair Work Act 2009, specifically whether the respondent had a valid reason related to the applicant's capabilities or conduct, or some other valid reason.

The legal issues before the FWC were whether the dismissal was procedurally fair, and whether it was substantively fair. Procedural fairness required consideration of whether the respondent provided the applicant with an opportunity to respond to the allegations and evidence against him. Substantive fairness involved determining whether the respondent had a valid reason for dismissing the applicant, and whether the action taken was reasonable in the circumstances.

The FWC found that the dismissal was procedurally fair as the applicant was given a chance to respond to the allegations. However, the FWC determined that the dismissal was not substantively fair. The FWC found that the respondent did not have a valid reason for dismissing the applicant, as the evidence did not support the claims against him. Furthermore, the FWC considered that the action taken was excessive given the circumstances. As a result, the FWC ordered that the dismissal be unfair and that the respondent compensate the applicant for the unfair dismissal.

Michael Terry v Mannagum Enterprises

DECISION

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