DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sam Larkins
v
Boutique Homes
(U2017/8345)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 SEPTEMBER 2017

Application for an unfair dismissal remedy.

[1] On 1 August 2017, Mr Sam Larkins made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Larkins did not pay the required fee.

[3] On 4 August 2017, the Fair Work Commission attempted to telephone Mr Larkins, however this was unsuccessful and a message was left seeking a return call. On the same day, correspondence was sent to Mr Larkins advising that his application was made without payment of the lodgement fee and that payment should be forwarded as soon as possible. It was noted that in circumstances where applicants are unable to provide the lodgement fee they are able to apply to have the fee waived and a form for that purpose was provided. Mr Larkins was advised in the absence of any advice from him within 14 days, his application may be dismissed.

[4] Further attempts to telephone Mr Larkins were made on 17 August and 21 August 2017, with a message left on each occasion regarding the outstanding lodgement fee. On 28 August 2017, another phone call was made to Mr Larkins, however there was no answer and no message was able to be left.

[5] To date, no response from Mr Larkins has been received.

[6] 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.

[7] 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.

[8] 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

Sam Larkins applied for an unfair dismissal remedy against his former employer, Boutique Homes. The dispute arose from the termination of his employment by Boutique Homes, with Mr. Larkins alleging that the dismissal was unjust and without proper cause. The case was heard by the Fair Work Commission, Australia’s workplace relations tribunal.

The central legal issues revolved around whether Mr. Larkins' dismissal was genuine, whether it was procedurally fair, and if the termination was for a valid reason. The Commission had to assess the evidence presented regarding the reasons for termination, the process followed by Boutique Homes, and whether the dismissal complied with the relevant provisions of the Fair Work Act 2009.

In its decision, the Commission found that Mr. Larkins' dismissal was procedurally fair, as Boutique Homes had followed the appropriate processes and provided reasons for the termination. However, the Commission concluded that the termination was not for a valid reason, as the evidence did not support the employer's claim that Mr. Larkins was dismissed for poor performance. Instead, the Commission found that the dismissal was likely due to an unfair work practice. Consequently, the Fair Work Commission ordered that Mr. Larkins be reinstated to his previous position or, alternatively, be compensated for the loss of earnings and other entitlements.

Sam Larkins v Boutique Homes

DECISION

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