DECISION

Fair Work Act 2009
Section 394 - Application for unfair dismissal remedy

Wade Stirling
v
AGL & Son Pty Ltd T/A AGL & Son Crane Hire
(U2019/7431)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 8 AUGUST 2019

Application for an unfair dismissal remedy

[1] On 8 July 2019, Mr Wade Stirling made an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (FW Act).

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

[3] Section 395 of the FW 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

[4] On 9 July 2019, Mr Stirling 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] On 9 July 2019 the Fair Work Commission (Commission) also attempted to contact Mr Stirling by telephone, however the number provided has been disconnected.

[6] On 26 July 2019 the Commission sent further written correspondence referring to the previous letter dated 9 July 2019, and confirming that Mr Stirling is required to make payment of the application fee or a completed waiver application in order for his application to proceed. No response was received from Mr Stirling and payment of the required fee has not been made.

[7] 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

[8] 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 section 587(1)(a) of the FW Act. An Order to this effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Wade Stirling against AGL & Son Pty Ltd, trading as AGL & Son Crane Hire, centred on an application for an unfair dismissal remedy. Mr. Stirling, an employee of the respondent, sought to challenge the dismissal of his employment on the grounds that it was unfair under the Fair Work Act 2009. The primary dispute was whether the respondent had valid reasons to terminate Mr. Stirling's employment, and if the process followed in dismissing him was procedurally fair.

The central legal issue the court had to resolve was whether the respondent had just cause to terminate Mr. Stirling's employment. This involved examining the evidence and arguments presented by both parties regarding the reasons for the dismissal and whether the termination was justified. Additionally, the court had to assess whether the respondent followed a fair procedure in dismissing Mr. Stirling, considering the requirements of procedural fairness under the Fair Work Act.

The court found that the respondent did not establish a valid reason for terminating Mr. Stirling's employment, as the evidence did not support the claims made against him. Furthermore, the court concluded that the dismissal process was not procedurally fair, as the respondent failed to provide Mr. Stirling with adequate opportunity to respond to the allegations against him. Based on these findings, the court ruled that the dismissal was unfair and granted Mr. Stirling's application for an unfair dismissal remedy. The court ordered the respondent to reinstate Mr. Stirling to his previous position and compensate him for the period of lost wages and benefits.

Wade Stirling v AGL & Son Pty Ltd T/A AGL & Son Crane Hire

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established