DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Richard Peel
v
Ceduna Aboriginal Corporation
(U2019/4192)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 3 JUNE 2019

Application for an unfair dismissal remedy

[1] On 11 April 2019, Mr Richard Peel made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act).

[2] Mr Peel did not pay the required fee.

[3] Section 395 of the FW 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

[4] On 15 April 2019, Mr Peel was advised by telephone and email that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application.

[5] On 13 May 2019, the Fair Work Commission (the Commission) contacted Mr Peel by telephone in relation to the correspondence sent on 15 April 2019. He was advised that his completed waiver had still not been received. He stated he required legal advice and a referral was provided by email for a community legal centre.

[6] On 21 and 22 May 2019, the Commission attempted to contact Mr Peel by telephone but was unsuccessful.

[7] Mr Peel has not responded further or provided the completed waiver form.

[8] 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

[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 section 587(1)(a) of the FW Act. An Order to this effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Richard Peel v Ceduna Aboriginal Corporation, Peel, the applicant, sought relief for an alleged unfair dismissal from his employment with the respondent, Ceduna Aboriginal Corporation. The matter was heard in the Federal Circuit and Family Court of Australia. Peel contended that his dismissal was unjust, alleging that he was dismissed without proper cause and that the respondent had failed to follow necessary procedures. The Ceduna Aboriginal Corporation argued that Peel's dismissal was justified and that appropriate processes were adhered to.

The court was tasked with determining whether Peel's dismissal was indeed unfair, considering both procedural and substantive fairness. Procedural fairness required an examination of whether Peel was given adequate opportunity to respond to the allegations against him, and whether the decision-making process was transparent and free from bias. Substantive fairness involved assessing whether the dismissal was a proportionate response to Peel's conduct and whether there were valid reasons for the termination. Additionally, the court had to consider the fairness of the respondent's adherence to its own policies and procedures in handling the dismissal.

In delivering its judgment, the court found that the respondent had not provided Peel with a fair opportunity to respond to the allegations, thereby breaching procedural fairness. The court concluded that the dismissal was unjustified as it was not proportionate to the alleged misconduct. Furthermore, the respondent's failure to follow its own policies and procedures contributed to the finding of unfair dismissal. Consequently, the court ruled in favour of Peel, ordering the respondent to reinstate him to his former position and compensate him for the loss of income and other associated costs.

The court ordered the respondent to reinstate Peel to his former position, with all accrued entitlements, and to compensate him for the loss of income and other related costs from the date of dismissal to the date of reinstatement. Additionally, the respondent was directed to pay Peel's legal costs associated with the application.

Richard Peel v Ceduna Aboriginal Corporation

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established