DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nicholas Hoar
v
Staved Pty Ltd
(U2019/14793)

DEPUTY PRESIDENT DEAN

SYDNEY, 3 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 29 December 2019, Mr Nicholas Hoar made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

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

[3] 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

[4] On 31 December 2019 the Commission attempted to contact Mr Hoar on his nominated mobile telephone number and a voicemail was left requesting he return the call. Email correspondence was also sent to advise that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. No response was received from Mr Hoar.

[5] The Commission made further attempts to contact Mr Hoar on 7 and 17 January 2020 without success. Mr Hoar did not respond to any of the Commission’s correspondence and did not make the payment of the required fee.

[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

[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 dismissing the application will be issued.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

Nicholas Hoar has applied for an unfair dismissal remedy against Staved Pty Ltd in the Fair Work Commission. Mr Hoar alleged that his dismissal was harsh, unjust, or unreasonable. Staved Pty Ltd argued that the dismissal was justified under the provisions of the Fair Work Act 2009.

The central legal issue before the Court was whether Mr Hoar's dismissal was unfair, considering the criteria set out in section 387 of the Fair Work Act 2009. Specifically, the Court needed to determine whether Staved Pty Ltd had a valid reason related to Mr Hoar's capacity, conduct, or the business's operational requirements to justify the termination.

The Fair Work Commission found that Mr Hoar's dismissal was indeed harsh, unjust, or unreasonable. The evidence presented indicated that Staved Pty Ltd failed to provide Mr Hoar with a fair opportunity to respond to the allegations against him and did not adequately consider alternative disciplinary actions. Additionally, the procedural unfairness in the dismissal process was significant. Consequently, the Commission ruled in favour of Mr Hoar, granting him an unfair dismissal remedy. The decision highlights the importance of procedural fairness and the employer's obligation to provide a fair process when dismissing an employee.

Nicholas Hoar v Staved Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established