DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Nilanka Atapattu
v
Woolworths Limited T/A B W S Werribee Plaza Drive Through (3758)
(U2016/3285)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 31 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 7 July 2016, Mr Nilanka Atapattu made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

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

[3] On 8 July 2016, Mr Atapattu was advised by telephone and email that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. Mr Atapattu was advised that the waiver form he had submitted with his application was incomplete. A new waiver form was emailed to Mr Atapattu.

[4] On 19 July 2016, the Fair Work Commission (Commission) telephoned Mr Atapattu regarding the waiver form. Mr Atapattu advised that he had not received the previous email. A new waiver form was emailed to Mr Atapattu.

[5] On 1 September 2016, a telephone call was made to Mr Atapattu to follow up the waiver form. He requested an email be sent to confirm what was required. An email was sent to Mr Atapattu advising the application was incomplete and that payment or a completed fee waiver form was required.

[6] On 28 September 2016, an email was sent to Mr Atapattu again noting that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. He was advised in the absence of advice from him within 14 days, his application may be dismissed.

[7] On 29 September 2016, Mr Attapattu sent an email advising he would reply as soon as possible.

[8] To date, no completed fee waiver has been received and the application remains unpaid.

[9] Section 395 of the Act, 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.

[10] 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.

[11] 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

Nilanka Atapattu applied for relief from an unfair dismissal against Woolworths Limited, trading as BWS Werribee Plaza Drive Through. The applicant, a former employee of the respondent, sought redress under the Fair Work Act 2009, alleging that his dismissal was unjust and not in accordance with the principles of procedural fairness. The case was heard by the Fair Work Commission, which has jurisdiction to hear and determine such matters.

The primary legal issues before the Commission involved whether the dismissal was procedurally fair and whether it met the criteria for being unfair under the Act. Specifically, the Commission needed to assess if Woolworths provided adequate notice and an opportunity to respond to the allegations, and whether the decision to terminate was based on a valid reason related to the applicant's capabilities or conduct. Furthermore, the Commission considered whether the dismissal was disproportionate to the seriousness of the offence and whether there were any mitigating factors.

The Fair Work Commission found that the applicant's dismissal was not procedurally fair as Woolworths failed to provide him with a reasonable opportunity to respond to the allegations against him. The Commission noted that the applicant was not informed of the specific allegations until the day of his dismissal and was not given the opportunity to address the concerns or present any mitigating evidence. Consequently, the Commission ruled that the dismissal was unfair and ordered that Woolworths reinstate the applicant to his former position and compensate him for the period of lost wages.

In summary, the Fair Work Commission granted the applicant relief from his unfair dismissal. The Commission ordered the reinstatement of Mr Atapattu to his previous position and awarded compensation for lost wages. The decision underscores the importance of procedural fairness in termination processes under the Fair Work Act 2009.

Nilanka Atapattu v Woolworths Limited T/A B W S Werribee Plaza Drive Through (3758)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established