DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tod Louis
v
Safe Logistics
(U2020/1861)

COMMISSIONER BISSETT

MELBOURNE, 16 APRIL 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 19 February 2020, Mr Tod Louis made an application to the Fair Work Commission for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] The application made by Mr Louis was incomplete in that it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

[3] On 20 February 2020 the Commission telephoned Mr Louis to discuss payment. Mr Louis said he thought he had lodged a fee waiver form with his application. The Commission advised Mr Louis that a completed fee waiver form was not attached to his application however the Commission would send him a form to complete. Mr Louis said he would complete the form and send it to the Commission.

[4] Later that same day the Commission sent email correspondence to Mr Louis’ nominated email address attaching a fee waiver form and advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. The correspondence also warned that if Mr Louis did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed. Mr Louis did not respond.

[5] On 4 March 2020, the Commission telephoned Mr Louis and advised him that the Commission had not as yet received a completed fee waiver form from him. Mr Louis said he emailed the form to the Commission the previous week but would resend it. Mr Louis was given a direct email address to send the form to. Mr Louis said he would resend the form later that day or the following morning.

[6] On 17 March 2020, the Commission again contacted Mr Louis by telephone and advised him that a completed fee waiver form had not been received by from him. Mr Louis said he emailed the completed fee waiver form to the email address provided to him. He also said he would resend the form by email and will contact the Commission later that week to enquire if the form had been received. Mr Louis further advised that if the Commission does not receive the completed fee waiver form he will pay the filing fee.

[7] On 27 March 2020, the Commission made a final attempt to telephone Mr Louis to discuss payment. Mr Louis answered the call and advised he was unable to speak and will contact the Commission.

[8] To date, payment of the required fee has not been made and no fee waiver form has been received.

[9] Section 395 of the FW Act, which deals with application fees, states as follows:

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

[10] Section 587(1) of the FW Act provides that:

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

[11] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR718297

In the matter of Tod Louis versus Safe Logistics, the Federal Circuit and Family Court of Australia was called upon to address the application for an unfair dismissal remedy. Tod Louis had been dismissed by Safe Logistics, and he sought relief under the Fair Work Act 2009. Louis argued that the dismissal was unjust, while Safe Logistics contended that the dismissal was fair and within the legal parameters set by the Act.

The court was required to decide whether the dismissal was justified under section 587 of the Act, which allows dismissal for unsatisfactory performance. The central issue was whether Safe Logistics had followed the correct procedural steps in dismissing Louis and whether the dismissal was justified on the grounds of his unsatisfactory performance. Additionally, the court had to assess whether the dismissal complied with the requirements of procedural fairness and whether there were mitigating circumstances that should be taken into account.

The court found that Safe Logistics had not adequately demonstrated that Louis's dismissal was justified on the grounds of unsatisfactory performance. It was noted that the employer had not provided sufficient evidence to substantiate the claims of unsatisfactory performance. Furthermore, the court determined that procedural fairness was not observed, as Louis was not given adequate opportunity to address the concerns raised against him. Consequently, the court ruled that the dismissal was unfair, and Louis was granted the remedy of reinstatement. This decision underscored the importance of procedural fairness and the need for employers to provide clear and substantiated evidence when dismissing an employee on performance grounds.

Tod Louis v Safe Logistics

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established