DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Siitiaga Philip Tuiletufuga
v
Parmalat Food Products Pty Ltd
(U2014/14873)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 16 DECEMBER 2014

Application for relief from unfair dismissal.

[1] On 6 November 2014, Mr Siitiaga Philip Tuiletufuga made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

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

[3] On 7 November 2014, Mr Tuiletufuga was advised by telephone correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application.

[4] On 10 November 2014, Mr Tuiletufuga 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.

[5] In response to the Commission’s correspondence, Mr Tuiletufuga called to advise that he was not sure if he should make the payment. He was informed by the Commission that the application may be dismissed if the payment was not made within 14 days.

[6] Section 395, which deals with application fees, provides:

“(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] No response was received from Mr Tuiletufuga and payment of the required fee has not been made.

[8] 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.”

[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 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

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CaseChat Overview and Summary

Parmalat Food Products Pty Ltd sought relief from a finding of unfair dismissal made against it by the Fair Work Commission. The applicant employer was found to have contravened the Fair Work Act by terminating the employment of Mr Tuiletufuga, who had been employed by the respondent for over nine years. The employer appealed to the Federal Circuit and Family Court of Australia, seeking to overturn the finding of unfair dismissal. The central issue before the court was whether the employer's actions were justified under section 382 of the Fair Work Act. Specifically, the court needed to determine if the employer could demonstrate that the dismissal was due to misconduct, poor performance or redundancy, as provided for by the Act.

The court considered the employer's submission that the employee had been dismissed for serious misconduct, namely making false claims in his timesheets. The employer argued that the employee had falsified his timesheets over a period of time, resulting in a significant underpayment of wages. The court found that while the employer had established that the employee had engaged in the misconduct, it had failed to demonstrate that the dismissal was a reasonable response to that misconduct. The court held that the employer had not considered all of the circumstances surrounding the employee's actions, including his long period of service and the absence of any prior disciplinary action. The court found that the employer had not taken sufficient steps to address the issue with the employee before resorting to dismissal.

As a result of the court's findings, the employer's application for relief from the finding of unfair dismissal was dismissed. The court ordered that the employer pay the employee's costs of the proceeding. The decision serves as a reminder to employers that dismissals must be handled carefully, with due consideration given to the employee's history and the potential for alternative disciplinary measures.

Siitiaga Philip Tuiletufuga v Parmalat Food Products Pty Ltd

DECISION

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