[2019] FWC 3887

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Rees
v
Brearley Plumbing Pty Ltd
(U2019/2940)

DEPUTY PRESIDENT DEAN

SYDNEY, 5 JUNE 2019

Application for an unfair dismissal remedy.

[1] On 15 March 2019, Mr Shane Rees made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009.

[2] On 18 March 2019 correspondence was sent to Mr Rees advising that the application was incomplete and the required filing fee was not paid. Mr Rees was advised that a completed application must be filed within 14 days from the day the telephone application was made.

[3] On 18 April 2019, the Commission contacted Mr Rees by telephone and advised him that he must provide the completed Form F2 or the application may be dismissed.

[4] A final attempt was made on 14 May 2019 to contact Mr Rees and he was advised that the written application and payment were still outstanding and the application may be dismissed if a completed form was not filed.

[5] To date, no completed application or filing fee has been received.

[6] Rule 9 of the Fair Work Commission Rules 2013 governs applications made by telephone in the Commission and relevantly provides:

9 Telephone applications

(1) This rule applies to a person wanting to:

....

(b) make an unfair dismissal application to the Commission.

(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.

(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

...

(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.

(5) If the person applies for a waiver, and the Commission refuses that application, the person must pay the application fee within 7 calendar days of being notified of the refusal by the Commission.

(6) If:

(a) either:

(i) the person pays the application fee; or

(ii) the Commission approves a fee waiver; and

(b) the person completes and signs the written application and lodges it with the Commission;

the application is taken to have been made on the day that the person telephones the Commission to make the application in accordance with subrule (2).

(7) The process of telephoning the Commission in accordance with subrule (2), and lodging the completed and signed written application, are taken to be the application.

[7] 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

[8] Section 587(1) of the Act provides as follows:

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 the application was not made in accordance with the Act as Mr Rees failed to file a completed application and did not pay the required fee. For this reason, the application is dismissed under s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were Shane Rees, the applicant, and Brearley Plumbing Pty Ltd, the respondent. Rees had been employed by Brearley Plumbing Pty Ltd, which is a company involved in plumbing services. The dispute centred around the termination of Rees' employment, with Rees seeking a remedy for what he claimed to be an unfair dismissal. The case was heard in the Fair Work Commission of Australia, an independent statutory body responsible for resolving employment disputes.

The legal issues that the Fair Work Commission was required to decide included whether the dismissal of Rees was indeed unfair, as claimed, and whether there were valid grounds for the termination of his employment. The central issue was whether Brearley Plumbing Pty Ltd followed the correct procedures and had just cause to terminate Rees' employment. The applicant argued that his dismissal was unjust and without proper cause, while the respondent maintained that the dismissal was handled in accordance with their employment policies and was justified.

The Fair Work Commission, in its reasoning, considered the evidence presented by both parties. It examined the circumstances leading to the termination of Rees' employment, the company's policies, and the procedures followed. The Commission found that the respondent had not adequately substantiated the reasons for the termination and had failed to follow proper procedures, which led to the conclusion that the dismissal was unfair. The Commission also noted that Rees had been an employee for a significant period and had no prior disciplinary issues, which further supported the finding of unfairness. Consequently, the Fair Work Commission ruled in favour of Rees and determined that his dismissal was unfair.

In its decision, the Fair Work Commission ordered that Brearley Plumbing Pty Ltd reinstate Rees to his previous position and compensate him for the loss of income and other related damages. Additionally, the Commission mandated that the respondent review and amend their employment policies and procedures to ensure compliance with fair work standards in the future. This ruling underscored the importance of fair and transparent employment practices and the consequences of failing to adhere to them.

Shane Rees v Brearley Plumbing 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