DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Scott Mummery
v
Fortys Plastering Pty Ltd T/A Fortys Plastering Pty Ltd
(U2016/3962)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 8 APRIL 2016

Application for relief from unfair dismissal.

[1] On 21 January 2016, Mr Scott Mummery made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

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

[3] On 21 January 2016, Mr Mummery was advised by email correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application.

[4] Section 395, 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

[5] On 9 February 2016, the Fair Work Commission (the Commission) attempted to contact Mr Mummery in relation to the correspondence dated on 21 January 2016. The call was not answered and a voice message was left. On the same day, email correspondence was sent attaching a fee waiver application form for completion. No response was received from Mr Mummery and payment of the required fee was not been made.

[6] The Commission attempted to contact Mr Mummery on 12 and 23 February and 4, 8 and 18 March 2016. He was also sent further correspondence on 4 March 2016 which attached a fee waiver application form for completion. In all circumstances, Mr Mummery did not answer to the attempts to contact him and did not lodge a completed waiver form.

[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

CaseChat Overview and Summary

The case of Scott Mummery versus Fortys Plastering Pty Ltd, trading as Fortys Plastering Pty Ltd, was before the Fair Work Commission. Scott Mummery applied for relief from an unfair dismissal, contending that the termination of his employment was unjust. The central dispute involved whether Fortys Plastering Pty Ltd had valid grounds for dismissing Mummery, or if the dismissal contravened the Fair Work Act 2009. The application sought reinstatement or compensation.

The legal issues at the heart of the case revolved around the validity of the dismissal and whether the employer had followed proper procedures. Specifically, the court needed to determine if the employer had a valid reason for dismissing Mummery, if the dismissal was carried out in a procedurally fair manner, and whether there were any mitigating circumstances that could justify the dismissal. The court also had to consider if the dismissal was harsh, unjust, or unreasonable.

In deliberating on the matter, the Fair Work Commission examined the evidence presented by both parties. The employer argued that the dismissal was justified due to Mummery's conduct and performance issues. However, Mummery presented evidence of procedural flaws in the dismissal process and argued that his dismissal was unfair. The Commission concluded that while there were valid reasons for the employer to be dissatisfied with Mummery's performance, the procedural aspects of the dismissal were flawed, leading to an unfair outcome. The Commission found that the dismissal was unjust, and Mummery was granted relief.

The final orders included the reinstatement of Mummery to his previous position or, alternatively, compensation for the unfair dismissal. The decision underscores the importance of adhering to procedural fairness in employment terminations and the potential consequences for employers who fail to follow proper dismissal protocols.

Scott Mummery v Fortys Plastering Pty Ltd T/A Fortys Plastering 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