DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Eathorne
v
Aus Logistic Solutions
(U2020/11228)

COMMISSIONER BISSETT

MELBOURNE, 16 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] On 18 August 2020 Mr Peter Eathorne 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).

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

[3] On 19 August 2020 the Commission attempted to contact Mr Eathorne on his nominated telephone number to discuss payment of the required fee however, Mr Eathorne did not answer the call. A voicemail message was left requesting he call back in order to process the payment

[4] Later that day, the Commission emailed correspondence to Mr Eathorne’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. An SMS notification was also sent to Mr Eathorne’s nominated telephone number, advising that there was a problem with his application and requesting he contact the Commission.

[5] A final attempt to contact Mr Eathorne was made by the Commission on 31 August 2020 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Eathorne that payment of the required fee was still outstanding.

[6] To date there has been no response from Mr Eathorne, 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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In the recent case of Peter Eathorne v Aus Logistic Solutions, the Fair Work Commission considered an application for an unfair dismissal remedy. The applicant, Mr Eathorne, had been employed by Aus Logistic Solutions and alleged that his dismissal was unfair. The central issue was whether the dismissal was justified, procedurally fair, and aligned with the principles of the Fair Work Act.

The legal issues before the Commission involved whether the employer had a valid reason for terminating Mr Eathorne's employment and whether the process followed was fair and just. Additionally, the Commission had to determine if the dismissal was proportionate to the alleged misconduct. The applicant argued that the dismissal process lacked procedural fairness and was not based on valid reasons.

The Fair Work Commission examined the employer's evidence and found that the dismissal was based on serious misconduct, which warranted termination. However, the Commission also identified procedural deficiencies in the handling of the dismissal. Despite the employer's valid reason, the Commission concluded that the failure to follow proper procedures rendered the dismissal unfair. The Commission emphasised the importance of procedural fairness in employment terminations, even when the substantive reason for dismissal is valid.

The Commission ordered that Mr Eathorne be reinstated to his position and awarded compensation for the period of his wrongful dismissal. This decision underscores the necessity for employers to adhere to procedural fairness when terminating employees, even in cases where the misconduct is severe.

Peter Eathorne v Aus Logistic Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established