DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Mr Ren McKenzie
v
Respondent
(C2014/8253)

DEPUTY PRESIDENT ASBURY

BRISBANE, 9 FEBRUARY 2015

Application to deal with contraventions involving dismissal.

[1] On 17 December 2014, Mr Ren Matthew McKenzie (the Applicant) purported to file an application pursuant to s.365 of the Fair Work Act 2009 (the Act). This application was incomplete in that it did not sufficiently identify the Respondent against whom the application was made, and no payment of the lodgement fee, or application for waiver of the lodgement fee, was received.

[2] On 17 December 2014, the Industrial Registry corresponded with the Applicant and his named representative via email, using the email addresses stated on the originating application. This correspondence advised that if the two matters addressed in the letter were not rectified the Application may be dismissed.

[3] No response from the Applicant was received to this correspondence.

[4] On 8 January 2015, the Industrial Registry telephoned the Applicant to advise that the application remained incomplete. The Applicant requested that the documents be resent by email; this Industrial Registry did so on the same day.

[5] On 13 January 2015, the Applicant contacted the Industrial Registry requesting that the documents be sent to him again, along with an application for waiver of the lodgement fee. The Industrial Registry again emailed the Applicant with a copy of the correspondence, outlining those matters that needed to be addressed, a copy of the incomplete application and an application for waiver of the lodgement fee. This letter advised that if no further advice was received from the Applicant, the application may be dismissed.

[6] No further response has been received from the Applicant.

[7] Section 587 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

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[8] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“367 Application fees

(1) The application 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 section 365; and

(b) a method for indexing the fee; and

[9] The Applicant has failed to comply with s.376(1) of the Act or made application to have the prescribed fee waived. The Applicant has been given sufficient opportunity to rectify the situation.

[10] The Applicant has not sufficiently identified the Respondent to the application. Without this detail the application has no reasonable prospects of success.

[11] The Applicant has also failed to prosecute his application in a timely manner.

[12] The Application is dismissed pursuant to ss.587(1)(a) and (c).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Mr Ren McKenzie applied to the Fair Work Commission to address contraventions stemming from his dismissal by the respondent. The dispute centred on whether the dismissal was unlawful, particularly under the Fair Work Act, and whether the respondent had breached the Act by not providing McKenzie with a valid reason for dismissal. The Fair Work Commission was tasked with determining these issues and, if applicable, ordering remedies for McKenzie.

The central legal questions before the Commission were whether the dismissal of McKenzie was justified under the Fair Work Act, and if the respondent had complied with the procedural requirements when terminating McKenzie's employment. Specifically, the Commission needed to assess if the respondent had provided a valid reason for dismissal, and if McKenzie was given an opportunity to respond to any allegations against him. The respondent argued that the dismissal was justified due to McKenzie's misconduct, while McKenzie contended that the dismissal was without valid reason and procedurally unfair.

In examining the evidence presented, the Commission found that the respondent had failed to provide McKenzie with a valid reason for dismissal, as required by the Fair Work Act. Additionally, McKenzie was not given a reasonable opportunity to respond to the allegations of misconduct. The Commission concluded that these failures constituted a contravention of the Act. Consequently, the Commission ordered the respondent to reinstate McKenzie to his former position, and to compensate him for the period of unlawful dismissal. The Commission also directed the respondent to take steps to ensure compliance with the Fair Work Act in future employment terminations.

Mr Ren McKenzie v Respondent

DECISION

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Legal Principle Established