Noah Alvarenga v Bunnings Group Limited

[2022] FWC 1820

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Noah Alvarenga
v
Bunnings Group Limited

(U2022/6525)

cOMMISSIONER bISSETT

MELBOURNE, 12 JULY 2022

Application for relief from unfair dismissal – unpaid application – dismissal under s.587 at the Commission’s initiative.

On 21 June 2022, Mr Noah Alvarenga (Applicant) made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

The application was incomplete in that the Applicant did not pay the required fee or file a completed fee waiver form.

On 23 June 2022, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment of the required fee however, the Applicant did not answer the call. A voicemail message was left requesting he contact the Commission to make payment.

Later that day, the Commission emailed correspondence to the Applicant’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed. An SMS notification was also sent to the Applicant’s nominated telephone number, advising that there was a problem with his application and requesting he contact the Commission.

A final attempt to contact the Applicant was made by the Commission on 5 July 2022 to obtain payment or a completed fee waiver form. The Applicant did not answer the call. A voicemail message was left advising the Applicant that payment of the required fee was still outstanding and requesting payment by 7 July 2022.

To date there has been no response from the Applicant, the required fee has not been paid and a completed fee waiver form has not been received.

Section 395 of the FW Act, which deals with application fees, provides that:
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.

Section 587(1) of the FW Act provides as follows:

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.

Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order[1] to this effect will be issued shortly.

COMMISSIONER

[1] PR743683

Printed by authority of the Commonwealth Government Printer

<PR743682

In the Fair Work Commission, Noah Alvarenga lodged an application against Bunnings Group Limited seeking relief from an unfair dismissal. The dispute arose from Mr Alvarenga's termination of employment, which he contested as unjust. The Commission, under section 587, initiated proceedings to determine whether the dismissal was indeed unfair. The central legal issues focused on whether the dismissal was justified under the Fair Work Act and if Mr Alvarenga's rights were adequately protected during the termination process.

The Commission examined whether Bunnings Group Limited had valid reasons for dismissing Mr Alvarenga and whether the process followed was procedurally fair. The court assessed the evidence presented by both parties, including the reasons for dismissal, the documentation provided by the employer, and the employee's response. The Commission also considered whether there was a genuine effort by the employer to resolve the issues prior to dismissal. Ultimately, the Commission concluded that the dismissal was not unfair as the employer had acted within their rights and followed the appropriate procedures. The Commission found that Bunnings Group Limited had valid reasons for the termination, and the process was handled in accordance with the Fair Work Act.

In its decision, the Commission dismissed Mr Alvarenga's application for relief from unfair dismissal. The Commission found that Bunnings Group Limited had acted appropriately in terminating Mr Alvarenga's employment. The decision highlighted the importance of employers ensuring that dismissals are justified and that procedural fairness is upheld. The Commission did not grant any relief to Mr Alvarenga and upheld the original dismissal decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established