DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ricky Chalklen
v
Securecorp
(U2016/14954)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 1 FEBRUARY 2017

Application for an unfair dismissal remedy.

[1] On 15 December 2016, Mr Ricky Chalklen made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The application form filed by Mr Chalklen in the Fair Work Commission was incomplete in the following respects:

Question 1.1, ‘What date did you begin working for your employer?,’ was unanswered; and

The application fee was not paid or a completed fee waiver application received.

[3] On 16 December 2016, written correspondence was sent to Mr Chalklen advising his application was incomplete as question 1.1 was left blank and payment of the application fee had not been made. Mr Chalklen was provided with an application for fee waiver form and advised to complete his application. He was advised in the absence of any advice from him within 14 days, his application may be dismissed.

[4] On 3 January 2017, further correspondence was sent to Mr Chalklen advising that his application remained incomplete and unpaid. Mr Chalklen was again provided with an application for fee waiver form and advised to complete his application and that in the absence of any advice from him within 14 days, his application may be dismissed.

[5] On 12 January 2017, Mr Chalklen telephoned the Commission and advised he would file an amended application and application for fee waiver as soon as possible. He was advised that in the absence of a completed application and fee waiver form being received by 17 January 2017, his application may be dismissed.

[6] To date, Mr Chalklen has not filed a completed application or paid the required fee.

[7] Section 395 of the 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

[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] In these circumstances, I have determined that the application was not made in accordance with the Act. I am satisfied that as the Application was not accompanied by the fee prescribed by the Act or a completed fee waiver application form, the application was not made in accordance with the Act. Consequently, the application is dismissed under s.587(1)(a) of the Act. An Order to this effect will be issued with this Decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case of Ricky Chalklen v Securecorp, the Fair Work Commission was tasked with addressing an application for an unfair dismissal remedy. The applicant, Mr Chalklen, was employed by Securecorp and alleged that his dismissal was both harsh, unjust, and unreasonable. The dispute centred on the grounds of misconduct and capability, as cited by Securecorp in the termination of Mr Chalklen’s employment. The Commission was required to determine whether the employer's actions were justified under the Fair Work Act.

The primary legal issue before the Commission was whether Securecorp had valid grounds to dismiss Mr Chalklen. Specifically, the court needed to assess whether the misconduct and capability claims were substantiated and if the employer followed the correct procedures for dismissal. This included examining the evidence presented regarding the alleged misconduct, the employer's investigation into the matter, and the fairness of the dismissal process. Additionally, the Commission had to consider whether Securecorp acted in accordance with procedural fairness, including providing Mr Chalklen with an opportunity to respond to the allegations.

In reaching its decision, the Commission found that Securecorp had not provided sufficient evidence to substantiate the allegations of misconduct. The investigation conducted by Securecorp was deemed inadequate, and the employer failed to provide Mr Chalklen with a fair opportunity to respond to the allegations. The Commission concluded that the dismissal was unfair due to these procedural shortcomings. As a result, the application for an unfair dismissal remedy was successful. The Commission ordered Securecorp to reinstate Mr Chalklen to his former position and compensate him for the period of lost earnings.

Ricky Chalklen v Securecorp

DECISION

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