DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Patrick Anthony
v
Scotts Refrigerated
(U2017/6932)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 25 JULY 2017

Application for an unfair dismissal remedy.

[1] On 28 June 2017, Mr Patrick Anthony made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] Mr Anthony did not pay the required fee and the application for fee waiver form was incomplete, with page 2 of the form, which includes questions 3 to 6, being omitted.

[3] On 29 June 2017, the Fair Work Commission attempted to telephone Mr Anthony, however this was unsuccessful and a voicemail message was left. On the same day, correspondence was sent to Mr Anthony advising that the application for fee waiver form was incomplete and in particular the second page of the form had not been received. Mr Anthony was advised that if he wished to proceed with his application, payment or a completed application for fee waiver was required as soon as possible. Mr Anthony was advised in the absence of any advice from him within 14 days, his application may be dismissed.

[4] Further attempts to telephone Mr Anthony were made on 10 July and 18 July 2017, with a voicemail message left on each occasion seeking a return call regarding the outstanding lodgement fee and incomplete application for fee waiver form.

[5] To date, no response from Mr Anthony has been received.

[6] 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.

[7] 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.

[8] 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

The plaintiff, Patrick Anthony, sought a remedy for unfair dismissal from his employer, Scotts Refrigerated. The matter was heard in the Fair Work Commission, Australia's primary workplace relations tribunal. The central dispute centred on the validity of the dismissal and whether it was unjust under the Fair Work Act 2009.

The court was tasked with determining whether Scotts Refrigerated had just cause to terminate the plaintiff's employment and whether the process followed was procedurally fair. Issues included the adequacy of the reasons provided for the dismissal, the fairness of the investigation conducted, and whether the employer complied with procedural requirements. The plaintiff argued that the dismissal was without valid reason and that the process lacked procedural fairness. Scotts Refrigerated contended that the dismissal was justified due to the plaintiff's misconduct and that the process was fair and reasonable.

The Commission found that while the employer did have valid reasons to dismiss the plaintiff due to misconduct, the process was flawed. The investigation was deemed insufficient as it did not provide the plaintiff with an opportunity to adequately respond to the allegations. Additionally, the employer did not provide sufficient notice of the dismissal and did not consider the possibility of alternative disciplinary measures. Consequently, the Commission ruled that the dismissal was unfair due to procedural errors, despite the valid reasons for termination.

The Fair Work Commission ordered that Scotts Refrigerated reinstate the plaintiff to his previous position and compensate him for lost wages from the date of dismissal. The employer was also required to apologise to the plaintiff for the procedural errors in the dismissal process.

Patrick Anthony v Scotts Refrigerated

DECISION

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