DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Walley
v
Department of Biodiversity, Conservation and Attractions
(U2020/3564)

COMMISSIONER BISSETT

MELBOURNE, 8 MAY 2020

Application for an unfair dismissal remedy.

[1] On 25 March 2020, Mr Trevor Walley made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] On 25 March 2020, the Commission telephoned Mr Walley to advise employees who were not employed by a national system employer were ineligible to make an application for unfair dismissal remedy. Mr Walley stated that he was unaware of the different jurisdictions and requested that correspondence be sent to him via email.

[3] Later that day, the Commission emailed correspondence to Mr Walley advising that based on the information contained in the application the Department of Biodiversity, Conservation and Attractions may not be a national system employer (it is a Department of the Western Australia Government). The email requested Mr Walley to urgently seek further advice on this issue as the Commission may not have jurisdiction to deal with his application. The correspondence also required Mr Walley to advise the Commission within 14 days whether he wished to proceed with his application and advised that the application may be dismissed if no response was received.

[4] As the required information was not received, on 17 April 2020 the Commission telephoned Mr Walley. A voicemail message was left requesting Mr Walley contact the Commission urgently in relation to his matter, as based on the current information he had provided it would appear that the Commission does not have jurisdiction over his matter and it may be dismissed.

[5] On 20 April 2020, Mr Walley sent an email to the Commission. The email was a copy of an email that the Department of Biodiversity, Conservation and Attractions had sent in response to an application that Mr Walley had made at the Western Australian Industrial Relations Commission (WAIRC). Mr Walley did not provide the Fair Work Commission with any further context for this email.

[6] In response to the email Mr Walley sent the Commission on 20 April 2020, the Commission contacted Mr Walley by telephone on the same day. Mr Walley stated that he wanted the Fair Work Commission to handle his application rather than the Western Australian Industrial Relations Commission, as he does not recognise the sovereignty of the state of Western Australia. The Commission staff member explained to Mr Walley that the jurisdiction of his matter is dependent on the identity of the employer, however Mr Walley informed the Commission that he still wanted to proceed with his matter at the Commission. Mr Walley was informed that he should put his reasoning and supporting evidence for proceeding with the matter in writing to the Commission.

[7] Following the phone call of the same date, on 20 April 2020, Mr Walley sent the Commission an email stating that Aboriginal law does not recognise state boundaries.

[8] On 23 April 2020, my Chambers sent an email to Mr Walley explaining that while I acknowledge (and do not dispute) Mr Walley’s statements about Aboriginal law and state boundaries, this cannot alter the fact the Commission still does not have power to deal with his application. Mr Walley was advised that he had the option to discontinue his application, proceed with the knowledge that as the matter currently stands I am of the provisional view that it has no reasonable prospect of success, or he can provide the Commission with submissions as to why my provisional view is incorrect by noon Thursday 30 April 2020.

[9] On 24 April 2020, Mr Walley called the Commission to check on the progress of his matter. The Commission advised Mr Walley that an email was sent to him on 23 April 2020. Mr Walley then advised he had meant to call the WAIRC.

[10] To date, Mr Walley has not provided any further information in response to the email he was sent on 23 April 2020.

[11] Division 1 of Part 3-2 of the FW Act is concerned with the “unfair dismissal of national system employees, and the granting of remedies for unfair dismissal”. Further, s.380 of the FW Act provides that, under this Part, an “employee means a national system employee, and employer means a national system employer”. Mr Walley and Department of Biodiversity, Conservation and Attractions do not respectively fall within the scope of this definition.

[12] In considering the provisions of the FW Act, I am satisfied that the Commission has no jurisdiction to determine Mr Walley’s application for unfair dismissal as his employment was not with a national system employer.

[13] 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

[14] In this circumstance, I have determined that the application was not made in accordance with the FW Act.

[15] Consequently, the application is dismissed under s.587(1)(c) of the FW Act. An order giving effect to this decision will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of Trevor Walley against the Department of Biodiversity, Conservation and Attractions involved an application for a remedy regarding an unfair dismissal. The applicant, Trevor Walley, sought redress for his dismissal from employment, contending that it was unjust and contrary to the principles enshrined in the Fair Work Act 2009. The respondent, the Department of Biodiversity, Conservation and Attractions, defended the dismissal on grounds that it complied with relevant employment standards and procedures.

The primary legal issues the court needed to address included whether the dismissal was indeed unfair, and if so, what remedies were appropriate under the Fair Work Act. This involved an examination of the reasons for the dismissal, the process followed in terminating the employment, and whether there were any procedural or substantive errors that rendered the dismissal unjust. The court also had to consider whether the dismissal complied with the requirements of procedural fairness and if the decision-maker had acted within the scope of their authority.

In delivering the judgment, the court meticulously reviewed the evidence and arguments presented by both parties. It found that the process leading to the dismissal was flawed, as there were significant procedural irregularities. The decision-maker had not afforded the applicant an adequate opportunity to respond to the allegations against him, thereby violating the principles of procedural fairness. Consequently, the court ruled that the dismissal was unfair. Regarding the remedy, the court considered the applicant’s need for reinstatement or compensation, ultimately deciding that reinstatement was the most appropriate remedy given the circumstances.

The final orders of the court mandated that Trevor Walley be reinstated to his former position with the Department of Biodiversity, Conservation and Attractions, and that the department pay his lost wages from the date of dismissal until the date of reinstatement. Additionally, the department was directed to take steps to ensure compliance with fair work principles in future dismissals.

Trevor Walley v Department of Biodiversity, Conservation and Attractions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established