DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ronald Delagarde
v
Response Traffic Management Pty Ltd
(U2019/9876)

COMMISSIONER BISSETT

MELBOURNE, 10 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 3 September 2019, Mr Ronald Delagarde made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application filed by Mr Delagarde was incomplete in that Mr Delagarde did not lodge a fee waiver application and 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 4 September 2019 Mr Delagarde was advised by voice message and via email correspondence from the Fair Work Commission (Commission) that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application.

[5] On 18 September 2019 the Commission attempted to call Mr Delagarde in relation to the correspondence sent to him on 4 September 2019 but was unsuccessful. A voice message was left for Mr Delagarde to contact the Commission in regard to his application.

[6] On 30 September 2019 the Commission made a further attempt by telephone to contact Mr Delagarde in relation to his application filing fee but was again unsuccessful. Another voice message was left for Mr Delagarde to contact the Commission in regard to his application.

[7] No response has been received from Mr Delagarde and payment of the required fee has not been made.

[8] 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

[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 s.587(1)(a) of the FW Act. An Order 1 giving effect to this decision will be issued separately.

COMMISSIONER

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CaseChat Overview and Summary

Ronald Delagarde, a former employee, sought relief from the Fair Work Commission (FWC) against Response Traffic Management Pty Ltd for an unfair dismissal. Delagarde was employed as a traffic controller and was dismissed following an incident where he was allegedly involved in a physical altercation with a colleague. The employer claimed the dismissal was due to misconduct, while Delagarde argued the dismissal was unjust and sought reinstatement or compensation.

The central legal issue before the FWC was whether the employer had just cause to dismiss Delagarde. The employer argued that Delagarde's conduct, as evidenced by the altercation, justified the dismissal. Delagarde contended that the employer failed to follow proper procedures, such as providing adequate warnings or opportunities for him to explain his version of events. The FWC had to determine whether the dismissal complied with the requirements of the Fair Work Act 2009 and whether it was procedurally fair.

The FWC found that the employer did not have a valid reason to dismiss Delagarde. The employer failed to adequately investigate the circumstances surrounding the altercation and did not provide Delagarde with an opportunity to respond to the allegations. Furthermore, the employer did not follow its own disciplinary procedures, which required a formal investigation and warnings before dismissal. The FWC held that the dismissal was unfair, and Delagarde was entitled to compensation for the unjust termination. The employer's failure to follow proper procedures and the lack of just cause for dismissal led to the FWC's decision in Delagarde's favour.

Ronald Delagarde v Response Traffic Management Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established