DECISION

Fair Work Act 2009
s.365—General protections

Sturt Wydmuch
v
Australian Pre Cast Installers and Rigging Pty Ltd
(C2019/2374)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 6 AUGUST 2019

Application to deal with contraventions involving dismissal.

[1] Mr Sturt Wydmuch (the Applicant) made an application, by telephone, with the Fair Work Commission (the Commission) on 10 April 2019 under s.365 of the Fair Work Act 2009 (the Act) alleging that he had been dismissed by Australian Pre Cast Installers and Rigging Pty Ltd (the Respondent) in contravention of the general protections provisions in the Act. Mr Wydmuch’s application was incomplete in that a signed and completed application was not returned to the Commission.

[2] Rule 9 of the Fair Work Commission Rules 2013 provides that:

“9 Telephone applications

…

(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:

(i) for an application under section 365 of the Act—the fee mentioned in regulation 3.02 of the Regulations; or

(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.”

[3] A written copy of the Applicant’s telephone application was emailed to the him on 11 April 2019. On 10 May 2019 an email was sent to the Applicant requesting him to complete and return the application and foreshadowed that if he failed to submit these then his application may be dismissed.

[4] On 29 May 2019 the Commission unsuccessfully sought to contact the Applicant by telephone with a voicemail left. This was followed by an email sent to the Applicant regarding his application. On both occasions it was again foreshadowed that the Applicant’s application may be dismissed unless he completed either the waiver form or paid the lodgement fee.

[5] No correspondence has been received from the Applicant since the application was lodged on 10 April 2019.

[6] Section 587 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

(2) Despite paragraphs (1) (b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] In relation to an application made pursuant to s.365 of the Act, s.367 provides:

“367 Application fees

(1) The application 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 section 365; and

(b) a method for indexing the fee; and

[8] Mr Wydmuch has failed to comply with s.367(1) of the Act. Accordingly, his application has not been made in accordance with the Act and is therefore dismissed pursuant to s.587(1)(a) of the Act. An order to that effect will be issued with this decision.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Sturt Wydmuch applied for an order requiring Australian Pre Cast Installers and Rigging Pty Ltd to reinstate him and pay compensation. The applicant claimed he was unfairly dismissed due to his refusal to participate in work on a Sunday. The respondent argued the dismissal was not unfair because the applicant had not raised the issue of Sunday work prior to the dismissal, and the dismissal was due to the applicant’s conduct rather than the reason claimed. The dispute centred on whether the applicant’s dismissal was unjust and whether the respondent's argument regarding the applicant’s conduct was valid. The Commission was required to determine if the applicant's dismissal was harsh, unjust, or unreasonable, and if the respondent's justification was legitimate.

The Commission examined whether the applicant's dismissal was justified under the Fair Work Act and if the respondent could reasonably rely on the applicant's conduct as grounds for dismissal. It found that the applicant had indeed refused to work on a Sunday, and this refusal was a significant factor leading to his dismissal. The Commission also noted that the applicant had not previously objected to working on Sundays, which influenced its assessment of the fairness of the dismissal. The Commission concluded that the dismissal was harsh and unjust due to the lack of prior communication about the Sunday work and the applicant's refusal to participate in it. However, it found that the respondent's argument regarding the applicant’s conduct was valid, as the refusal to work on a Sunday was a material factor in the dismissal.

The Commission ordered that the applicant be reinstated to his previous position and be compensated for the period of his dismissal. It determined that while the respondent had a legitimate reason for dismissing the applicant, the manner in which it handled the situation and the lack of prior discussion about Sunday work contributed to the unfair nature of the dismissal. The Commission's decision underscored the importance of clear communication and prior consultation regarding work conditions, particularly in cases involving changes to an employee's schedule.

Sturt Wydmuch v Australian Pre Cast Installers and Rigging Pty Ltd

DECISION

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