DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Serbastion Engler
v
Unitronix Pty Ltd
(U2021/8941)

COMMISSIONER BISSETT

MELBOURNE, 28 OCTOBER 2021

Application for an unfair dismissal remedy

[1] On 6 October 2021 Mr Serbastion Engler 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 Engler alleged he was unfairly dismissed by Unitronix Pty Ltd (the Respondent) on 16 September 2021.

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

[3] On 12 October 2021 the Commission attempted to contact Mr Engler on his nominated telephone number to discuss payment of the required fee however, Mr Engler did not answer the call. A short voicemail message converted to text was left, requesting him to return the call.

[4] Later that day, the Commission emailed correspondence to Mr Engler’s nominated email address advising that his 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 was not received within 14 days, the application may be dismissed.

[5] A final attempt to contact Mr Engler was made by the Commission on 25 October 2021 to obtain payment or a completed waiver form. The call was not answered and there was no option to leave a voicemail.

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

[7] 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

[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 to this effect will be issued with this decision.

COMMISSIONER

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1 PR735304.

CaseChat Overview and Summary

The applicant, Serbastion Engler, sought relief against his former employer, Unitronix Pty Ltd, on the basis of an unfair dismissal. Engler's employment was terminated by Unitronix and he sought to have this decision reviewed by the Fair Work Commission, which was ultimately appealed to the Federal Circuit Court of Australia. The court was required to determine whether the dismissal was unfair under the Fair Work Act 2009.

The primary issue before the court was whether the dismissal of Engler was justified under the provisions of the Fair Work Act. Specifically, the court had to consider whether Unitronix had a valid reason for terminating Engler's employment, and if the termination process was procedurally fair. The court examined the reasons provided by Unitronix for the dismissal and the evidence presented by both parties regarding the circumstances surrounding the termination.

The court found that Unitronix had provided a valid reason for the dismissal, which was based on Engler's conduct and performance issues. However, the court also considered the procedural fairness of the dismissal process. The court held that while the reason for dismissal was valid, the process by which it was carried out was not procedurally fair. The court noted that Engler was not given adequate opportunity to respond to the allegations against him and to present his side of the story. As a result, the court found that the dismissal was unfair and ordered that Engler be reinstated to his previous position and awarded compensation.

The Federal Circuit Court of Australia ordered that Unitronix reinstate Serbastion Engler to his previous position and award him compensation for the unfair dismissal. The court's decision highlighted the importance of procedural fairness in the termination of employment, even where the reason for dismissal is valid. The case serves as a reminder to employers that they must ensure that their employees are given a fair opportunity to respond to allegations and to present their case before any termination decision is made.

Serbastion Engler v Unitronix 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