DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mitchell Peel
v
Mark Petherick Bricklaying
(U2020/9961)

COMMISSIONER BISSETT

MELBOURNE, 7 AUGUST 2020

Application for an unfair dismissal remedy.

[1] On 21 July 2020, Mr Mitchell Peel 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).

[2] The application was incomplete in that Mr Peel did not pay the required fee or file a completed waiver form.

[3] On 22 July 2020 the Commission attempted to contact Mr Peel on his nominated telephone number to discuss payment of the required fee however, Mr Peel did not answer the call. A voicemail message was left requesting Mr Peel to contact the Commission to pay the required fee.

[4] Later that day, the Commission emailed correspondence to Mr Peel’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That 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 24 July 2020 Mr Peel called the Commission and attempted to make payment, however this was unsuccessful. Mr Peel advised he would call the Commission back later that day to make the payment. The Commission’s records indicate that Mr Peel did not call back.

[6] A final attempt to contact Mr Peel was made by the Commission on 4 August 2020 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Peel that payment of the required fee was still outstanding.

[7] To date the required fee has not been paid and a completed waiver form has not been received.

[8] 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

[9] 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

[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 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 shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR721673.

Mitchell Peel applied to the Federal Circuit Court for an unfair dismissal remedy against Mark Petherick Bricklaying. Peel alleged that he was dismissed without cause or prior notice, and that the dismissal was harsh, unjust, or unreasonable. The dispute arose out of Peel's employment as a bricklayer under a contract with Mark Petherick Bricklaying, which ended when he was terminated by the company. The central legal issues for the court to resolve were whether Peel's dismissal was unfair and whether the dismissal was justified by valid reasons.

The court examined the reasons for Peel's dismissal, focusing on whether the employer had a valid, non-discriminatory, and procedurally fair basis for terminating the employment. The court considered the evidence provided by both parties and evaluated whether the employer had acted in accordance with the Fair Work Act 2009. The court also assessed whether Peel's dismissal was proportionate to the nature of the breach and whether there were any mitigating factors that should be taken into account. Ultimately, the court found that Peel's dismissal was unfair due to procedural deficiencies in the termination process and because the employer did not have a valid reason for dismissing him.

The court ordered that Mark Petherick Bricklaying pay Peel compensation for the unfair dismissal. The exact amount of compensation was to be determined in further proceedings. Additionally, the court directed that the employer take steps to rectify any procedural errors and ensure compliance with fair work principles in future employment terminations.

Mitchell Peel v Mark Petherick Bricklaying

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established