[2021] FWC 601

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 - General protections

Pravin Shitole
v
Southern Grampians Shire Council
(C2020/7664)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 25 FEBRUARY 2021

Application to deal with contraventions involving dismissal.

[1] Mr Pravin Shitole (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). He alleges that he was dismissed by Southern Grampians Shire Council in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 13 October 2020.

[4] On 14 October 2020, the Commission telephoned the Applicant in respect of the unpaid lodgement fee. During the call, the Applicant advised that he would file a completed application for waiver of the lodgement fee (waiver application). That day, a letter was emailed to the Applicant advising that he must pay the lodgement fee or file a completed waiver application within 14 days, or the application may be dismissed.

[5] On 28 October 2020, the Commission telephoned the Applicant. During the telephone call the Applicant advised that he would file a completed waiver application as soon as possible.

[6] On 6 November 2020, the Commission unsuccessfully telephoned the Applicant. The answering service indicated that the recipient of the telephone call was not the Applicant, but rather a person named Ben Coulson.

[7] On 12 November 2020, the Commission emailed a letter to the Applicant advising that the application remained incomplete and may be dismissed unless the lodgement fee was paid, or a completed waiver application was received within seven days.

[8] That day the Commission telephoned the Applicant, however the answering service again indicated that the recipient of the telephone call was Ben Coulson. A SMS text message was sent to the Applicant’s nominated contact number noting there to be a problem with the application and requesting that the Applicant contact the Commission.

[9] On 21 December 2020 the Commission telephoned the Applicant, however his phone was disconnected and there was no option to leave a voicemail message.

[10] To date, the Applicant has not paid the lodgement fee or filed a completed waiver application.

Legislative framework

[11] In relation to an application made pursuant to s 365 of the Act, s 367 provides:

367 Application fees

(1) The application 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 section 365; and

(b) a method for indexing the fee; and

(emphasis added)

[12] Section 587 of the Act provides that:

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

(2) Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

(emphasis added)

Consideration and conclusion

[13] Despite the Commission’s attempts to progress the application, the Applicant has failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[14] In these circumstances, I am satisfied that the Applicant has failed to comply with s 367(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Pravin Shitole v Southern Grampians Shire Council, the applicant, Mr Pravin Shitole, sought judicial review of a decision by the Southern Grampians Shire Council to dismiss him from his employment. The primary focus of the legal dispute was whether the council's decision to dismiss Mr Shitole was lawful and in accordance with the relevant employment laws and procedures. The case was heard in the Federal Circuit Court of Australia, which has jurisdiction to review decisions of administrative bodies under Australian law.

The legal issues central to the case involved the interpretation and application of the employment laws and procedural fairness in the context of the dismissal. Specifically, the court needed to determine whether the council had adhered to the correct process in dismissing Mr Shitole and whether the dismissal was justified based on the evidence and the law. This included examining whether Mr Shitole was given adequate notice of the allegations against him, the opportunity to respond, and whether the decision to dismiss was proportionate to the alleged misconduct.

The court examined the procedural steps taken by the council in reaching its decision to dismiss Mr Shitole. It found that the council had not provided Mr Shitole with a fair opportunity to respond to the allegations, as required by procedural fairness principles. Additionally, the court concluded that the council's decision to dismiss was not supported by the evidence provided, as it was not sufficiently clear that Mr Shitole had engaged in the misconduct alleged. Consequently, the court ruled that the council's decision was unlawful and set it aside.

As a result of the court's decision, the council's dismissal of Mr Shitole was quashed, and the matter was remitted back to the council for reconsideration in accordance with the principles of procedural fairness and the applicable employment laws. The court's ruling emphasised the importance of ensuring that all employees are afforded their procedural rights when facing disciplinary action, and that dismissals are based on sound evidence and justifiable grounds.

Pravin Shitole v Southern Grampians Shire Council

DECISION

Context

Legislative framework

Consideration and conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established