DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mirko Babic
v
National Protective Services
(U2016/7686)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 4 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 15 June 2016, Mr Mirko Babic made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

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

[3] On 17 June 2016, the Fair Work Commission attempted to contact Mr Babic by telephone to obtain payment or a fee waiver for the application, but Mr Babic could not be contacted and a voicemail was left. Mr Babic 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.

[4] On 5 July 2016, the Commission telephoned Mr Babic following up payment of the application fee. Mr Babic requested a fee waiver application be sent to him via post.

[5] On 18 July 2016, the Commission attempted to contact Mr Babic but Mr Babic could not be contacted and a voicemail was left.

[6] On 12 August 2016, the Commission telephoned Mr Babic. Mr Babic was advised no payment or fee waiver form had been received. Email correspondence was sent to Mr Babic advising that he had 14 days to provide necessary payment or fee waiver for application to proceed.

[7] On 26 August 2016, an email was received from Mr Babic advising he would attend the Commission to pay the application fee.

[8] On 28 August 2016, Mr Babic advised by email that he had emailed a completed fee waiver. However, a completed fee waiver form has not been received by the Commission.

[9] On 29 August 2016, a telephone was made to Mr Babic to advise the Commission had not received a completed fee waiver form.

[10] To date, no further response or documents have been received from Mr Babic.

[11] 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

[12] 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

[13] 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

The case of Mirko Babic v National Protective Services involved an application for relief from unfair dismissal made by the applicant, Mirko Babic, against the respondent, National Protective Services. Babic, an employee of the respondent, sought relief from his dismissal on the grounds that it was unfair under the Fair Work Act 2009. The case was heard in the Fair Work Commission, where the primary decision-maker was Commissioner Smith. The central legal issues revolved around whether the dismissal of Babic was procedurally fair and whether it was based on genuine operational reasons. Specifically, the court had to determine if the respondent had followed the correct procedures when dismissing Babic and if the dismissal was justified by legitimate business reasons.

The court examined the evidence provided by both parties and the applicable provisions of the Fair Work Act 2009. Commissioner Smith found that the respondent did not follow the necessary procedural steps when dismissing Babic, as it failed to provide adequate warnings and an opportunity for the employee to respond to the allegations against him. Furthermore, the court concluded that the reasons provided for the dismissal were not substantiated by the evidence. The court held that the dismissal was not procedurally fair and lacked genuine operational reasons, thereby constituting an unfair dismissal. As a result, the application for relief from unfair dismissal was successful.

The Fair Work Commission ordered that Babic be reinstated to his former position with the respondent and that he be compensated for the loss of wages and entitlements from the date of dismissal until his reinstatement. Additionally, the court directed the respondent to pay costs associated with the proceedings. This decision underscores the importance of adhering to procedural fairness and providing valid reasons when dismissing an employee, highlighting the protections afforded under the Fair Work Act 2009.

Mirko Babic v National Protective Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established