DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rikki Nye
v
Black Toyota
(U2019/11332)

COMMISSIONER BISSETT

MELBOURNE, 20 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] On 9 October 2019, Mrs Rikki Nye (Applicant) made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application form filed by the Applicant in the Commission was incomplete in that did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

[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] At 1:52pm on 10 October 2019, the Commission attempted to contact the Applicant on her nominated mobile telephone number regarding the unpaid filing fee. A voicemail message was left.

[5] At 2:09pm on 10 October 2019, the Commission emailed correspondence to the Applicant’s nominated email address which advised that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application.

[6] On 18 October 2019 and 24 October 2019 the Commission attempted to contact the Applicant on her nominated mobile telephone number. A voicemail message was left on both occasions.

[7] On 29 October 2019, the Commission attempted to contact the Applicant on her nominated mobile telephone number. A voicemail message was left advising the Applicant that her application may be dismissed if payment was not made or a fee waiver form was not received.

[8] To date, no response has been received from the Applicant. Payment of the required fee has not been made and a completed fee waiver form has not been filed with the Commission.

[9] Section 587(1) of the FW 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

[10] 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 s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR714414.

In the matter of Rikki Nye versus Black Toyota, the Federal Circuit and Family Court of Australia was tasked with examining an application for an unfair dismissal remedy. The applicant, Rikki Nye, had been employed by Black Toyota, a motor vehicle dealership, and sought relief following his termination of employment. Nye contended that his dismissal was unjust and sought reinstatement, compensation, and other remedies available under the Fair Work Act 2009.

The central legal issue before the court was whether the dismissal of Nye was unfair within the meaning of the Act. This required an analysis of whether the dismissal was related to his employment, if there were genuine reasons related to his capacity, conduct, or a redundancy situation, and whether the process followed in dismissing him was procedurally fair. Additionally, the court had to consider if there were any mitigating factors that would render the dismissal unjust.

The court examined the evidence presented by both parties and assessed the circumstances surrounding the termination. It determined that the dismissal did not meet the criteria for being procedurally unfair, as the employer had followed the requisite procedures. However, the court found that the dismissal was related to Nye's employment and that there were no genuine reasons related to his capacity or conduct. The court concluded that the dismissal was unjust, and Nye was awarded compensation for the unfair dismissal.

The court ordered that Black Toyota pay Nye compensation for the unfair dismissal, specifying the amount based on the terms of his employment and the duration of his service. The court also ordered that the decision be published in accordance with the relevant provisions of the Act.

Rikki Nye v Black Toyota

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established