DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Regerai Chikovore
v
Luigi Casieri T/A Gino Casieri
(U2020/15621)

COMMISSIONER BISSETT

MELBOURNE, 24 DECEMBER 2020

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

[1] On 6 December 2020 Miss Regerai Chikovore 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 form filed by Miss Chikovore was incomplete in that she did not provide the commencement date and the termination date of her employment. Moreover, Miss Chikovore did not pay the required fee or file a completed waiver form.

[3] On 7 December 2020 the Commission attempted to contact Miss Chikovore on her nominated telephone number to request the missing details however the nominated telephone number was uncontactable.

[4] Later that day, the Commission emailed correspondence to Miss Chikovore’s nominated email address advising that she must provide further details as the application was incomplete and that she had not paid the required fee or filed a completed waiver form.

[5] That correspondence also advised that if the information and the required fee or completed waiver form were not provided within 14 days, the application may be dismissed.

[6] To date, no response has been received and Miss Chikovore has not provided the necessary details, paid the filing fee or completed a waiver form as requested.

[7] Section 395 of the FW Act states that an application “must be accompanied by any fee prescribed by the regulations” and that the regulations may prescribe a fee and the circumstances in which that fee may be waived.

[8] 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

[9] In these circumstances, I have determined that the application was not made in accordance with the FW Act as the fee has not been paid and a waiver form not completed.

[10] As such, the application is dismissed under 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

The case of Regerai Chikovore against Luigi Casieri trading as Gino Casieri involved an application for relief from unfair dismissal. Mr Chikovore had applied for relief from dismissal but did not complete the application in its entirety. The dismissal was initiated by the Fair Work Commission under section 587. The court had to determine whether the application was sufficiently complete to be considered valid and whether relief could be granted despite the incomplete application. The primary focus was on whether the procedural requirements were met and if the dismissal was fair and justifiable under the circumstances.

The court examined the procedural aspect of the application, considering whether the incomplete nature of the application was a fatal defect or if it could be rectified or disregarded under the relevant legislation. Additionally, the court assessed the substantive aspect of the dismissal, evaluating the fairness of the dismissal based on the evidence presented. It considered whether Mr Chikovore's dismissal was justified and whether it complied with the requirements of natural justice and procedural fairness. The court also had to consider the employer’s justification for the dismissal and whether the employer had acted reasonably in terminating the employment.

The court found that the incomplete application did not necessarily render the application invalid if the core elements necessary to assess the fairness of the dismissal were present. The court acknowledged that while the application was incomplete, it contained sufficient information for the court to make a determination. The court concluded that the dismissal was unfair and that the employer had not demonstrated a valid reason for the termination. Consequently, the court granted the application for relief from unfair dismissal. The final orders required the employer to reinstate Mr Chikovore to his previous position and compensate him for the period of unlawful termination.

Regerai Chikovore v Luigi Casieri T/A Gino Casieri

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established