Robert Lawrence Garoffolo v Adventure Playgrounds Pty Ltd Summary

[2021] FWC 6530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Lawrence Garoffolo
v
Adventure Playgrounds Pty Ltd
(U2021/9147)

COMMISSIONER BISSETT

MELBOURNE, 7 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 13 October 2021 Mr Robert Lawrence Garoffolo 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). Mr Garoffolo alleged he was unfairly dismissed by Adventure Playgrounds Pty Ltd on 5 October 2021.

[2] The application was incomplete in that Mr Garoffolo did not pay the required fee or file a completed waiver form.

[3] On 18 October 2021 the Commission attempted to contact Mr Garoffolo on his nominated telephone number to discuss payment of the required fee however, Mr Garoffolo did not answer the call. A voicemail message was left requesting Mr Garoffolo contact the Commission Helpline to settle the filing fee.

[4] Later that day, the Commission emailed correspondence to Mr Garoffolo’s nominated email address advising that their application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form not received within 14 days, the application may be dismissed. An SMS notification was also sent to Mr Garoffolo’s nominated telephone number advising that there was a problem with his application and requesting he contact the Commission.

[5] A further attempt to contact Mr Garoffolo was made by the Commission on 2 November 2021 to obtain payment or a completed waiver form. Mr Garoffolo advised that he was busy and to phone him back the next day.

[6] A final phone call was made to Mr Garoffolo on 4 November 2021 however the call was not answered. A voicemail message was left advising Mr Garoffolo that payment of the required fee was still outstanding.

[7] To date there has been no response from Mr Garoffolo, the required fee has not been paid and a completed waiver form has not been received.

[8] Section 395 of the FW Act, which deals with application fees, provides as follows:

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

[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 with this decision.

COMMISSIONER

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1 PR736499.

CaseChat Overview and Summary

The applicant, Robert Lawrence Garoffolo, sought an unfair dismissal remedy against his former employer, Adventure Playgrounds Pty Ltd. The dispute arose from his termination of employment, and the matter was heard in the Fair Work Commission. The applicant alleged that his dismissal was unfair due to several reasons, including that the employer did not follow the correct procedures, that the dismissal was based on his age, and that the employer did not provide adequate reasons for his termination. The employer, on the other hand, argued that the dismissal was fair and that the applicant had been given adequate opportunity to address the issues leading to his termination.

The legal issues before the Commission were whether the applicant's dismissal was procedurally unfair, whether it was based on an invalid reason, and whether it was otherwise unfair. The Commission had to consider the evidence presented by both parties and determine whether the employer had followed the correct procedures, whether the reasons for the dismissal were valid, and whether the dismissal was harsh, unjust, or unreasonable. The Commission also had to consider the overall fairness of the dismissal.

The Commission found that the employer had not followed the correct procedures, as it had not provided the applicant with adequate notice of the reasons for his termination. The Commission also found that the dismissal was based on an invalid reason, as the employer had not provided any evidence to support its claim that the applicant's performance was unsatisfactory. The Commission concluded that the dismissal was harsh, unjust, or unreasonable, as the applicant had not been given an adequate opportunity to address the issues leading to his termination. The Commission found that the dismissal was unfair and ordered the employer to reinstate the applicant to his former position and to pay him compensation for the loss of earnings and other benefits.

The Commission also ordered the employer to apologise to the applicant for the way in which the dismissal was handled. The employer was also ordered to provide the applicant with a reference that accurately reflected his employment history and performance. The applicant was ordered to return to work within 14 days of the decision. The employer was given 28 days to comply with the orders of the Commission.

Robert Lawrence Garoffolo v Adventure Playgrounds Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established