Sri Nanthakumar v Access Testing Pty Ltd T/A Access Testing Pty Ltd

[2013] FWC 8365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sri Nanthakumar
v
Access Testing Pty Ltd T/A Access Testing Pty Ltd
(U2013/10753)

COMMISSIONER WILSON

MELBOURNE, 28 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 20 June 2013, an application under s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Sri Nanthakumar.

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

[3] On 21 June 2013, Mr Nanthakumar was advised by telephone correspondence that his application required payment of the ($65.50) 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

(c) the circumstances in which all or part of the fee may be waived or refunded.

[5] On 21 June 2013, Mr Nanthakumar 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. On the 4 July 2013, correspondence was sent to Mr Nanthakumar advising that in the absence of a payment or completed waiver from the application may be dismissed. On the 16 July 2013, Mr Nanthakumar was advised via telephone to provide payment of a completed waiver form. No response has been received from Mr Nanthakumar and payment of the required fee has not been made.

[6] 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.

[7] 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.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Sri Nanthakumar, sought relief from an unfair dismissal decision made by Access Testing Pty Ltd, trading as Access Testing Pty Ltd, in the Fair Work Commission. The applicant argued that the dismissal was unjust due to procedural unfairness and potential discrimination. The tribunal was tasked with determining whether the dismissal was indeed unfair under the Fair Work Act 2009.

The primary legal issues centred around whether the dismissal was carried out in accordance with the procedural fairness principles and whether the dismissal constituted unfair treatment under the Act. Specifically, the tribunal had to assess if the employer followed appropriate procedures when terminating the applicant's employment and if there was any discriminatory element involved in the dismissal process.

The tribunal concluded that the dismissal was not unfair. The employer had followed proper procedures in terminating the applicant's employment, including providing a clear explanation of the reasons for the dismissal and allowing the applicant an opportunity to respond. Furthermore, there was no evidence to suggest that the dismissal was based on discriminatory grounds. The tribunal found that the employer's actions were reasonable and justified, and therefore, the dismissal was not unfair. Consequently, the application for relief was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established