DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mohamad El-Mawed
v
A&S Whole Sale Fruit and Vegetable Pty Ltd T/A Parkmore Fruit and Vege Market
(U2015/8274)

COMMISSIONER WILSON

MELBOURNE, 14 JULY 2015

Application for relief from unfair dismissal.

[1] On 6 June 2015, Mr Mohamad El-Mawed made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr El-Mawed did not pay the required fee; however, he attached an incomplete waiver of application fee form (waiver form) to his application for remedy for unfair dismissal.

[3] On 9 June 2015, the Fair Work Commission (the Commission) left a voice message for Mr El-Mawed to contact the Commission as his waiver form was incomplete. On the same day, he 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 email advised that in the absence of any advice from Mr El-Mawed within 14 days, his application may be dismissed.

[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

[5] On 25 June 2015, the Commission attempted to contact Mr El-Mawed in relation to the correspondence dated 9 June 2015. A voice message was left. On the same day, further correspondence was sent to Mr El-Mawed via email. He was again advised that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. The email advised that in the absence of any advice from Mr El-Mawed within 14 days, his application may be dismissed.

[6] On 1 July 2015, further email correspondence was sent to Mr El-Mawed seeking details which were not included in the waiver form.

[7] On 1 July 2015 and 8 July 2015, further voice messages were left, asking that Mr El-Mawed contact the Commission in relation to his application.

[8] To date, no response has been received from Mr El-Mawed, payment of the required fee has not been made and a completed waiver form has not been filed.

[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

[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.

COMMISSIONER

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CaseChat Overview and Summary

Mohamad El-Mawed brought an application for relief from unfair dismissal against A&S Whole Sale Fruit and Vegetable Pty Ltd T/A Parkmore Fruit and Vege Market in the Federal Circuit and Family Court. The applicant, El-Mawed, sought reinstatement and compensation following his dismissal from employment, arguing that the termination was unjust and contrary to the provisions of the Fair Work Act 2009. A&S Whole Sale Fruit and Vegetable Pty Ltd contested the application, asserting that the dismissal was carried out in accordance with their internal policies and was based on valid reasons, including misconduct and capability issues.

The court was required to determine whether the dismissal was harsh, unjust, or unreasonable under section 383 of the Fair Work Act. It also needed to assess whether there were valid reasons related to the applicant's capacity or conduct that justified the dismissal. Additionally, the court had to consider whether the company had followed a fair procedure in terminating the applicant's employment. The primary focus was on whether the dismissal met the threshold for being considered unfair, as defined by relevant case law and legislative provisions.

The court examined the evidence and arguments presented by both parties. It considered the nature of the applicant's employment, the circumstances surrounding the dismissal, and the employer's reasons for terminating the employment. The court found that the employer had followed a procedurally fair process and that there were valid reasons related to the applicant's conduct and capability that justified the dismissal. The court concluded that the dismissal did not meet the threshold of being harsh, unjust, or unreasonable, and thus the application for relief from unfair dismissal was dismissed. Consequently, the applicant's claims for reinstatement and compensation were rejected.

Mohamad El-Mawed v A&S Whole Sale Fruit and Vegetable Pty Ltd T/A Parkmore Fruit and Vege Market

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established