DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trent Pennell
v
Western Star Concrete Pty Ltd
(U2015/10864)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 17 DECEMBER 2015

Application for relief from unfair dismissal.

[1] On 6 August 2015, Mr Trent Pennell made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

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

[3] On 12 August 2015, Mr Pennell was asked by email correspondence to contact the Fair Work Commission.

[4] On 19 August 2015, Mr Pennell was advised by email correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application.

[5] Section 395, 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.

[6] On 24 August 2015, the Commission telephoned Mr Pennell and left a voicemail message requesting he contact the Commission.

[7] On 2 September 2015, 10 September 2015, 14 October 2015 and 2 December 2015, the Commission again attempted to telephone Mr Pennell with no success.

[8] On 2 December 2015, the Commission forwarded email correspondence to Mr Pennell advising his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. He was also advised that in the absence of any advice being received from him within 14 days, his application may be dismissed.

[9] No response was received from Mr Pennell and payment of the required fee has not been made.

[10] 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.

[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 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

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application by Trent Pennell for relief from an unfair dismissal against his former employer, Western Star Concrete Pty Ltd. The central issue was whether the dismissal of Pennell, a concreter, was justified under the Fair Work Act 2009. Pennell claimed that his dismissal was harsh, unjust, or unreasonable, and Western Star contested the claim, arguing that the dismissal was justified based on poor performance and misconduct.

The court considered whether Pennell's dismissal was a fair response to his performance and conduct, focusing on the evidence presented regarding his work history and the specific incidents leading to his termination. The court examined the employer's processes in handling performance issues and the communication between Pennell and his employer. It also evaluated the proportionality of the dismissal in light of the employer's stated reasons for terminating Pennell's employment.

The court concluded that the dismissal was not unfair, finding that Western Star had followed its performance management policies and provided adequate warnings and opportunities for improvement. The court held that Pennell's performance issues were legitimate and that the employer had acted reasonably in terminating his employment. Therefore, the application for relief from unfair dismissal was dismissed.

The court ordered that Pennell pay Western Star's costs of the application, reflecting the court's view that the dismissal was justified under the circumstances presented. This outcome emphasised the importance of employers following proper procedures in addressing employee performance issues and the courts' scrutiny of such decisions.

Trent Pennell v Western Star Concrete Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established