DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mitchell Martinez-Hughes
v
The Freestyle Homes Trust T/A Freestyle Homes
(U2016/12819)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 24 October 2016, Mr Mitchell Martinez-Hughes made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The application form filed by Mr Martinez-Hughes in the Fair Work Commission was incomplete as he did not pay the filing fee.

[3] On 24 October 2016, the Commission attempted to contact Mr Martinez-Hughes on the telephone number provided in his application and a voicemail was left. On the same date, an email was sent to Mr Martinez-Hughes advising that his application was incomplete and required payment of the filing fee or a completed waiver form and that in the absence of any advice from him within 14 days, his application may be dismissed.

[4] On 2 November 2016, Mr Martinez-Hughes telephoned the Commission and advised he was not in a position to make payment of the filing fee until 9 November 2016.

[5] On 7 November 2016, an email was sent to both Mr Martinez-Hughes and his legal representative advising that the application was incomplete and required payment of the filing fee or a completed waiver form and that in the absence of any advice from Mr Martinez-Hughes within 14 days, his application may be dismissed.

[6] On 21 November 2016, the Commission attempted to contact Mr Martinez-Hughes on the telephone number provided in his application and a voicemail was left requesting he urgently contact the Commission. On the same date, the Commission telephoned the office of Mr Martinez-Hughes’s legal representative. The Commission was advised Mr Martinez-Hughes’s legal representative was travelling but he would return the Commission’s call and follow up Mr Martinez-Hughes urgently to make payment.

[7] Mr Martinez-Hughes or his legal representative have not provided the necessary details as requested.

[8] 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.

[9] Having regard to the above, Mr Martinez-Hughes has failed to pay the required fee or complete an application for fee waiver.

[10] 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.

[11] 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

Mitchell Martinez-Hughes sought relief from an unfair dismissal from his employment with Freestyle Homes, a company involved in residential construction. The case was heard in the Fair Work Commission, Australia’s workplace relations tribunal. Martinez-Hughes claimed that his dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. He alleged that he was dismissed for reporting safety violations and other misconduct by his superiors, and that this constituted an unfair dismissal under the Act.

The central legal issues before the Commission were whether the dismissal was procedurally fair, and if it was substantively fair given the reasons provided. Procedural fairness focused on whether Martinez-Hughes was given adequate notice and an opportunity to respond to the allegations against him. Substantive fairness examined whether the dismissal was reasonable in the circumstances, taking into account the employer's right to dismiss an employee for serious misconduct.

The Commission found that while the employer had followed procedural steps, the process was flawed as Martinez-Hughes was not informed of the specific allegations against him in sufficient detail. Additionally, the Commission considered that the employer had not adequately addressed Martinez-Hughes’s potential defences, such as acting in good faith or under duress. The substantive fairness of the dismissal was also questionable given that the employer had not considered alternative disciplinary measures. As a result, the dismissal was deemed unfair, and Martinez-Hughes was granted relief. The Commission ordered that Freestyle Homes pay compensation and reinstate Martinez-Hughes to his previous position, or if that was not possible, provide him with a suitable alternative position.

Mitchell Martinez-Hughes v The Freestyle Homes Trust T/A Freestyle Homes

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established