DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tai Tumua Tipene
v
Industry Education T/A Itec Health Safe pathways
(U2015/4222)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 7 MAY 2015

Application for relief from unfair dismissal.

[1] On 23 March 2015, Mr Tai Tipene made an application for remedy for unfair dismissal under section 394 of the Fair Work Act 2009 (the Act).

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

[3] On 24 March 2015, a message was left for Mr Tipene to contact the Fair Work Commission regarding payment of the filing fee. Mr Tipene was also sent correspondence on the same day which noted that the lodgement fee had not been paid and that he was able to apply to have the fee waived. A fee waiver form was attached. Mr Tipene was advised that in the absence of any advice from him within 14 days, his application may be dismissed.

[4] On 26 March 2015, a staff member of the Commission spoke with Mr Tipene and he advised that he would advise the Commission if he wanted to continue with his application, make the payment or apply for the fee to be waived.

[5] On 7 April, a message was left for Mr Tipene to contact the Commission regarding his unpaid filing fee. On the same day, correspondence was sent to Mr Tipene which required him to advise within 14 days whether he wished to proceed with his application and in the absence of such advice, his application would be dismissed.

[6] Mr Tipene did not respond to the correspondence.

[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

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

[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 section 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

Tai Tumua Tipene, an employee, lodged an application for relief from unfair dismissal against his former employer, Industry Education T/A Itec Health Safe pathways, before the Fair Work Commission. The primary dispute centred on the validity of the termination of Tipene's employment under the Fair Work Act 2009. The legal issues that arose required the tribunal to determine whether the dismissal was procedurally fair and whether there were valid reasons for the termination. Specifically, the tribunal needed to assess if the employer had followed the necessary procedures outlined in the Act, and if the dismissal was justified based on the employer's evidence.

The tribunal examined the procedural fairness of the dismissal, considering whether Tipene was given adequate notice and an opportunity to respond to the allegations against him. Additionally, the tribunal assessed whether the employer had a valid reason to terminate the employment, such as misconduct or capability. The employer argued that Tipene's dismissal was justified due to his alleged involvement in misconduct and failure to meet the required performance standards. Tipene, on the other hand, contended that the dismissal was unfair and that the employer failed to follow proper procedures. The tribunal also considered the evidence presented by both parties, including witness testimonies and documentary evidence.

After evaluating the evidence, the tribunal found that the employer did not follow the required procedural steps and, therefore, the dismissal was unfair. The tribunal concluded that the employer had not provided Tipene with sufficient notice or an opportunity to respond to the allegations, thereby breaching the procedural fairness requirements. Furthermore, the tribunal determined that the employer's reasons for dismissal were not substantiated by the evidence. As a result, the tribunal ruled in favour of Tipene, granting his application for relief from unfair dismissal. The tribunal ordered that Tipene's employment be reinstated and that he be compensated for the loss of wages and benefits resulting from the unfair dismissal.

Tai Tumua Tipene v Industry Education T/A Itec Health Safe pathways

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established