DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stuart Macdonald
v
Casey Arc Aquatic and Recreation Centre
(U2018/9695)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 OCTOBER 2018

Application for an unfair dismissal remedy.

[1] On 23 August 2018, Mr Stuart Macdonald made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

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

[3] Due to technical difficulties, the Fair Work Commission (the Commission) was unable to locate Mr Macdonald’s application until 20 September 2018, after which the Commission sought to contact Mr Macdonald by telephone to request the payment of the filing fee. There was no answer and a voicemail message was left seeking his return call. Email correspondence was then sent to Mr Macdonald advising that if he wished to proceed with his application, payment of the filing fee or an application to have the fee waived should be made. Mr Macdonald was advised that in the absence of any advice from him within 14 days, his application may be dismissed.

[4] On 3 October 2018, the Commission made a further attempt to contact Mr Macdonald by telephone, however this was unsuccessful and a voicemail message was left seeking his return call. Further email correspondence was then sent to Mr Macdonald advising that if he wished to proceed with his application, payment of the filing fee or an application to have the fee waived was required. Mr Macdonald was provided with a further 14 days to pay the application filing fee or to apply for a fee waiver. It was again noted that in the absence of any advice from him within 14 days, his application may be dismissed.

[5] On 11 October 2018, the Commission made a final attempt to contact Mr Macdonald by telephone. As he did not answer, a voicemail message was left requesting his return call. Final email correspondence was sent to Mr Macdonald providing him with a further 14 days to pay the application filing fee or to make an application to have the fee waived. It was again noted that in the absence of any advice from him within 14 days, his application may be dismissed.

[6] To date, no response from Mr Macdonald has been received.

[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:

“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 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

Stuart Macdonald brought an application for unfair dismissal against Casey Arc Aquatic and Recreation Centre. The applicant, Mr Macdonald, was employed as a lifesaver at the Casey Arc Aquatic and Recreation Centre. He was dismissed following an incident where he was alleged to have assaulted a customer. The Fair Work Commission was the court in which this matter was heard. The primary legal issue before the Commission was whether Mr Macdonald's dismissal was harsh, unjust, or unreasonable. This required consideration of the proportionality of the response and the circumstances leading to the dismissal. The Commission also needed to assess whether there were valid reasons for the dismissal, and if Mr Macdonald was given a fair opportunity to respond to the allegations.

The Commission found that the respondent had valid reasons related to the seriousness of the misconduct, considering the allegations of assault. It was also noted that the respondent had followed proper procedures, including providing Mr Macdonald with an opportunity to respond to the allegations. The Commission determined that the dismissal was not excessive or harsh given the gravity of the misconduct. Consequently, the application for unfair dismissal was dismissed. The Commission emphasised that the dismissal was a reasonable response to the situation, considering the employer's need to maintain a safe environment for its customers and staff.

The Fair Work Commission dismissed the application, affirming that the respondent had acted reasonably and within its rights to terminate the employment under the circumstances presented. The Commission did not find any procedural unfairness in the dismissal process. It concluded that the employer had taken appropriate steps to address the serious allegations and that the dismissal was proportionate to the misconduct. The decision underscores the importance of employers maintaining a safe and respectful workplace, as well as the necessity for employees to adhere to the standards of conduct expected of them.

Stuart Macdonald v Casey Arc Aquatic and Recreation Centre

DECISION

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