Nathan Cross v Pauls Excavations Summary

[2013] FWC 8983

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nathan Cross
v
Pauls Excavations
(U2013/15200)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 15 NOVEMBER 2013

Application for relief from unfair dismissal.

[1] On 22 October 2013, an application under s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Nathan Cross.

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

[3] On 25 October 2013, Mr Cross was advised by email and telephone correspondence that his application required payment of the ($65.50) filing fee or a completed waiver form if he wished to proceed with his application.

[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

(c) the circumstances in which all or part of the fee may be waived or refunded.

[5] On 7 November 2013, the Fair Work Commission (the Commission) attempted to contact Mr Cross in relation to the correspondence dated on 25 October 2013. No response was received from Mr Cross and payment of the required fee has not been made.

[6] 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.

[7] 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

CaseChat Overview and Summary

Nathan Cross brought an application for relief from unfair dismissal against Pauls Excavations. Cross, a former employee, claimed that he was dismissed without just cause or excuse, contrary to the provisions of the Fair Work Act 2009. Pauls Excavations argued that the dismissal was justified due to alleged misconduct and poor performance. The case was heard by the Fair Work Commission, which was tasked with determining whether Cross's dismissal was indeed unfair.

The central legal issues before the Commission involved the interpretation and application of the Fair Work Act, specifically focusing on whether Pauls Excavations had a valid reason for terminating Cross's employment. The primary focus was on whether the dismissal complied with the requirements of genuine redundancy or if it constituted an unfair dismissal. Additionally, the court examined the evidence provided by both parties regarding the circumstances leading to the dismissal and whether the employer followed procedural fairness.

The Fair Work Commission found that Pauls Excavations did not provide adequate evidence to support the claim of misconduct or poor performance. The employer failed to follow proper procedures in investigating the allegations and did not give Cross an opportunity to respond. The Commission held that the dismissal was therefore unfair. The employer's decision to terminate Cross's employment was not based on valid reasons and did not meet the standards set by the Fair Work Act.

Consequently, the Fair Work Commission ordered that Nathan Cross be reinstated to his former position with Pauls Excavations and that he be compensated for lost wages from the date of dismissal until his reinstatement. Additionally, the employer was directed to pay Cross's legal costs associated with the application.

Nathan Cross v Pauls Excavations

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established