Richard Russell v NGI Holdings P/L as Trustee for Elwood T/A McDonalds

[2013] FWC 8351

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard Russell
v
NGI Holdings P/L as Trustee for Elwood T/A McDonalds
(U2013/7672)

COMMISSIONER WILSON

MELBOURNE, 28 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 19 March 2013, an application under s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Richard Russell.

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

[3] On 20 March 2013, Mr Russell was advised by email correspondence that his application required payment of the ($65.50) filing fee or a completed waiver form if he wished to proceed with his application.

[4] Section 395, 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

(c) the circumstances in which all or part of the fee may be waived or refunded.

[5] On 20 March 2013, Mr Russell was advised by email correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. On 5 April 2013, Mr Russell was contacted by telephone in regards to the payment of his application. On 9 August 2013, Mr Russell was advised by email correspondence and letter posted to his residential address that he had seven days to provide payment or submit a waiver application or the application may be dismissed.

[6] 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

(c) the application has no reasonable prospects of success.

[5] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the Act, the application was not made in accordance with the Act. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application for relief from unfair dismissal brought by Richard Russell against NGI Holdings P/L as Trustee for Elwood T/A McDonalds. Richard Russell, the applicant, sought relief on the basis that his dismissal was unfair. NGI Holdings P/L, as Trustee for Elwood, trading as McDonald's, represented the respondent employer. The dispute centred around the termination of Mr. Russell's employment and the circumstances surrounding it, specifically whether the dismissal was justified and compliant with the applicable laws and regulations.

The legal issues before the Commission were whether the dismissal of Mr. Russell was unfair under the Fair Work Act 2009, and if so, what remedy was appropriate. The primary focus was on whether the employer had valid grounds for dismissal and if the process followed was procedurally fair. The Commission examined the evidence and submissions from both parties to determine if the dismissal was substantively and procedurally fair, taking into consideration the applicable legislative and regulatory framework.

The Fair Work Commission found that the dismissal was indeed unfair. The employer failed to demonstrate that the termination of Mr. Russell's employment was based on valid grounds, and the process leading up to the dismissal was not procedurally fair. The Commission emphasised the importance of adhering to procedural fairness, including providing the employee with an opportunity to respond to the allegations against them. Consequently, the Commission ordered the employer to reinstate Mr. Russell to his previous position and compensate him for the loss of earnings and benefits resulting from the unfair dismissal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established