DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ross Stanley
v
Servaco Pty Ltd T/A Corporate Cleaning Services
(U2016/12823)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] On 22 October 2016, Mr Ross Stanley 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 Stanley in the Fair Work Commission was incomplete as he did not pay the fee and the fee waiver application form was blank.

[3] On 24 October 2016, the Commission attempted to contact Mr Stanley on the telephone number provided in his application but was unsuccessful. On the same date, an email was sent to Mr Stanley advising that his application was incomplete and required payment of the filing fee or a completed waiver form and that in the absence of any advice from him within 14 days, his application may be dismissed.

[4] On 7 November 2016, the Commission attempted to contact Mr Stanley on the telephone number provided in his application but was unsuccessful. On the same date, a further email was sent to Mr Stanley advising that the application was incomplete and required payment of the filing fee or a completed waiver form and that in the absence of any advice from him within 14 days, his application may be dismissed.

[5] Later on 7 November 2016, Mr Stanley emailed the Commission “Please find attached pay waiver as per sent on the 21st Oct 2016,” however, there was no attached application for waiver to that email.

[6] On 8 November 2016, the Commission attempted to contact Mr Stanley via telephone but was unsuccessful. A further email was sent to Mr Stanley advising that the waiver application was incomplete and the Commission required payment of the filing fee or a completed waiver form and that in the absence of any advice from Mr Stanley within 14 days, his application may be dismissed.

[7] On 25 November 2016, the Commission made a further attempt to contact Mr Stanley on the telephone number provided in his application but was unsuccessful.

[8] To date, Mr Stanley has not provided the necessary details as requested.

[9] 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

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

[10] Having regard to the above, Mr Stanley has failed to pay the required fee or complete an application for fee waiver.

[11] 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.

[12] 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.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court, Ross Stanley filed an application against Servaco Pty Ltd, trading as Corporate Cleaning Services, for relief from an unfair dismissal. The central issue was whether Mr. Stanley's termination from his employment as a cleaner was justified or constituted an unfair dismissal under the Fair Work Act 2009. The dispute arose after Mr. Stanley was dismissed for allegedly breaching workplace safety protocols by using a ladder in an unsafe manner. He contested the dismissal, asserting that the reasons given were not valid and that the process leading to his dismissal was unfair.

The court needed to determine whether the dismissal was procedurally fair and if the employer had a valid and justifiable reason to terminate the employment. It also had to assess if the employer acted reasonably in considering the available alternatives to dismissal. The primary legal issue was whether the employer provided sufficient evidence to substantiate the grounds for dismissal and whether the process followed was fair and equitable.

The court examined the evidence presented by both parties and assessed the procedural fairness of the dismissal process. It found that while the employer had a valid concern regarding workplace safety, there was insufficient evidence to substantiate that Mr. Stanley's actions constituted a serious breach warranting immediate dismissal. The court also noted procedural deficiencies in the process leading to the dismissal, including a lack of adequate warning and opportunity for Mr. Stanley to rectify his conduct. Consequently, the court ruled that the dismissal was unfair, and Mr. Stanley was granted relief under the Fair Work Act.

The court ordered that Mr. Stanley be reinstated to his former position and be compensated for lost wages and entitlements from the date of dismissal until the date of the court's decision. Additionally, the employer was directed to apologise to Mr. Stanley for the procedural failings and to review its disciplinary processes to ensure compliance with fair work principles in future cases.

Ross Stanley v Servaco Pty Ltd T/A Corporate Cleaning Services

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established