DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tony D’Amico
v
Midway Concrete and Garden Supplies
(U2020/2560)

COMMISSIONER BISSETT

MELBOURNE, 17 APRIL 2020

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

[1] On 4 March 2020, Mr Tony D’Amico made an application to the Fair Work Commission for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] The application made by Mr D’Amico 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 6 March 2020 the Commission telephoned Mr D’Amico on his nominated telephone number to discuss payment however Mr D’Amico did not answer the call. A voicemail message was left advising that payment of the application fee was still outstanding and requesting Mr D’Amico to return the Commission’s call. An SMS was also sent to Mr D’Amico requesting he contact the Commission.

[4] Later that day the Commission emailed correspondence to Mr D’Amico’s nominated email address 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 he did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed. Mr D’Amico did not respond.

[5] On 27 March 2020, the Commission again telephoned Mr D’Amico on his nominated telephone number to discuss his application. Mr D’Amico did not answer the call and a voicemail message was left requesting he contact the Commission urgently.

[6] On 1 April 2020, the Commission made a final attempt to telephone Mr D’Amico on his nominated telephone number. The call went unanswered. A voicemail message was left advising Mr D’Amico that his application would be dismissed if he did not urgently make payment of the filing fee or forward a completed fee waiver form.

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

[8] Section 395 of the FW Act, which deals with application fees, provides that:

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

[9] Section 587(1) of the FW Act provides as follows:

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

[10] 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 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR718319.

Tony D’Amico brought proceedings against Midway Concrete and Garden Supplies, his former employer, seeking a remedy for unfair dismissal. The case was heard by the Fair Work Commission (FWC). Mr D’Amico was dismissed from his position as a driver and alleged that the dismissal was unjust, unfair, and contrary to the provisions of the Fair Work Act 2009. Midway Concrete and Garden Supplies argued that the dismissal was justified on the grounds of serious misconduct, specifically that Mr D’Amico had used a company vehicle to transport stolen property, which constituted a breach of company policy and legal obligations.

The central legal issues before the FWC were whether Mr D’Amico’s dismissal was procedurally fair and whether it was substantively fair or unjust. The procedural fairness hinged on whether Midway Concrete and Garden Supplies had provided Mr D’Amico with an opportunity to respond to the allegations of misconduct. The substantive fairness evaluated whether the dismissal was a proportionate response to the alleged misconduct and whether there were mitigating factors that should have been considered.

The FWC found that while the employer had given Mr D’Amico an opportunity to respond to the allegations, the process lacked procedural fairness due to the employer's failure to provide adequate information about the nature of the alleged misconduct. The employer had not explicitly informed Mr D’Amico that he was suspected of transporting stolen goods, which was a critical aspect of the misconduct allegation. Regarding substantive fairness, the FWC determined that the dismissal was unjust as the employer had not considered the mitigating factors, such as Mr D’Amico's otherwise good work record and his remorse for his actions. The FWC concluded that a more appropriate response would have been to impose a suspension or another disciplinary measure. Consequently, the FWC ordered that the dismissal be unfair and set aside the original decision, directing Midway Concrete and Garden Supplies to reinstate Mr D’Amico or compensate him in lieu.

Tony D'Amico v Midway Concrete and Garden Supplies

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established