Paul Ruddell v Windermere Child and Family Services Summary

[2021] FWC 6531

FAIR WORK COMMISSION

DIRECTIONS

Fair Work Act 2009
s.394—Unfair dismissal

Paul Ruddell
v
Windermere Child and Family Services
(U2021/10175)

COMMISSIONER BISSETT

MELBOURNE, 7 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 11 November 2021, Mr Paul Ruddell 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). Mr Ruddell alleged he was unfairly dismissed by Windermere Child and Family Services on 5 November 2021.

[2] The application was incomplete in that Mr Ruddell did not pay the required fee or file a completed waiver form.

[3] On 12 November 2021 the Commission attempted to contact Mr Ruddell on his nominated telephone number to discuss payment of the required fee however a message advised the phone was disconnected.

[4] Later that day, the Commission emailed correspondence to Mr Ruddell’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 was not made or a waiver form was not received within 14 days the application may be dismissed.

[5] A final attempt to contact Mr Ruddell was made by the Commission on 25 November 2021 to obtain payment or a completed waiver form. A message advised the phone was disconnected.

[6] To date there has been no response from Mr Ruddell, the required fee has not been paid and a completed waiver form has not been received.

[7] Section 395 of the FW Act, which deals with application fees, provides as follows:

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

[8] Section 587(1) of the FW 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

[9] 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

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CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Paul Ruddell, the applicant, sought an unfair dismissal remedy against Windermere Child and Family Services, the respondent. Ruddell, who was employed as a case manager, alleged that he was unfairly dismissed due to his age, which he claimed was a contributing factor to the decision. The court was required to determine whether Ruddell's dismissal was indeed unfair, and if so, whether it was due to his age.

The primary legal issue before the court was whether Ruddell's dismissal was unfair within the meaning of the Fair Work Act 2009. The court had to consider whether Ruddell's age was a contributing factor in the decision to terminate his employment. This required a detailed examination of the evidence presented regarding the circumstances of the dismissal and the respondent's justification for the decision. The court also had to consider whether the respondent had acted in accordance with procedural fairness and whether Ruddell had an opportunity to respond to the allegations against him.

In its decision, the court found that Ruddell's dismissal was unfair, primarily due to the lack of procedural fairness and the failure to provide adequate reasons for the dismissal. The court found that the respondent did not properly investigate the allegations against Ruddell before making the decision to terminate his employment. Furthermore, the court found that age was a contributing factor in the decision to dismiss Ruddell. The court concluded that the respondent had not acted in accordance with the principles of natural justice and that Ruddell's dismissal was therefore unfair. The court ordered that Ruddell be reinstated to his former position and that he be compensated for lost wages and other losses resulting from the unfair dismissal.

Paul Ruddell v Windermere Child and Family Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established