William Mcgarvey v Yne Container Services Summary

[2014] FWC 244

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

William Mcgarvey
v
Yne Container Services
(U2013/17103)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 24 MARCH 2014

Application for relief from unfair dismissal.

[1] On 5 December 2013, an application under s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr William Mcgarvey.

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

[3] On 9 December 2013, Mr Mcgarvey was advised by email correspondence that his application required payment of the ($65.50) filing fee or a completed waiver form if he wished to proceed with his application.

[4] 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.

[5] On 20 December 2013, the Fair Work Commission (the Commission) contacted Mr Mcgarvey in relation to the email correspondence dated 9 December 2013.

[6] Mr Mcgarvey advised he had not received the correspondence. Upon checking his email junk mail folder, whilst on the telephone with the Commission, Mr Mcgarvey located the email correspondence and advised he would complete the waiver form and email the form to the Commission.

[7] On 6 January 2014, the Commission attempted to contact Mr Mcgarvey. A voice message was left on Mr. Mcgarvey’s phone requesting he call the Commission as soon as possible.

[8] On 16 January 2014, Mr Mcgarvey was advised by email correspondence that no payment or waiver form had been received and if payment or completed waiver form was not received by 23 January 2014, his matter may be dismissed.

[9] Mr Mcgarvey has not contacted the Commission or provided the necessary details as requested.

[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

William Mcgarvey brought an application for relief from unfair dismissal against Yne Container Services. The applicant, an employee of the respondent, was dismissed from his position, and he sought to challenge the fairness of that dismissal. The matter was heard in the Fair Work Commission.

The central legal issue was whether the dismissal was unfair within the meaning of the Fair Work Act 2009. Specifically, the court needed to determine if the dismissal was within the range of responses that a reasonable employer could have taken, considering the circumstances. The applicant argued that the dismissal was unjust, citing procedural unfairness and a lack of substantive justification. The respondent, on the other hand, maintained that the dismissal was fair, asserting that it was a genuine redundancy and that the applicant was provided with adequate notice and an opportunity to respond.

The Fair Work Commission found that the dismissal was procedurally fair as the applicant was given proper notice and a chance to be heard. However, the substantive fairness of the dismissal was contentious. The Commission concluded that while the dismissal was a genuine redundancy, the respondent failed to adequately consult with the applicant and other employees regarding the redundancy process. The Commission held that the dismissal was unfair due to the procedural shortcomings, despite the substantive justification being present. Consequently, the application for relief from unfair dismissal was upheld. The Commission ordered that the applicant be reinstated to his position and awarded compensation for the period of unlawful dismissal.

William Mcgarvey v Yne Container Services

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established