Wissam Sultan v Chipping Norton Motor Body Repairs Pty Ltd T/A Riverside Collision Centre

[2022] FWC 973

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Wissam Sultan
v
Chipping Norton Motor Body Repairs Pty Ltd T/A Riverside Collision Centre

(U2022/2589)

cOMMISSIONER bISSETT

MELBOURNE, 2 may 2022

Application for relief from unfair dismissal – unpaid application – dismissal under s.587 at the Commission’s initiative.

On 1 March 2022, Mr Wissam Sultan (Applicant) 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).

The application was incomplete in that the Applicant did not pay the required fee or file a completed fee waiver form.

On 1 March 2022, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment of the required fee however the Applicant did not answer the call and there was no capacity to leave a voicemail message.

Later that day, the Commission emailed correspondence to the Applicant’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 the application. That correspondence also warned that if payment is not made or a waiver form is not received within 14 days, the application may be dismissed. An SMS notification was also sent to the Applicant’s nominated telephone number, advising that there was a problem with the application and requesting he contact the Commission.

As no response was received a final attempt to contact the Applicant was made by the Commission on 17 March 2022 to obtain payment or a completed waiver form. The call was not answered. An SMS notification was sent to the Applicant’s nominated telephone number requesting a return call.

To date there has been no response from the Applicant, the required fee has not been paid and a completed fee waiver form has not been received.

Section 395 of the Act, which deals with application fees, provides as follows:

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.

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

(c) the application has no reasonable prospects of success.

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

COMMISSIONER

[1] PR741039

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Wissam Sultan, the applicant, filed an application for relief from unfair dismissal against Chipping Norton Motor Body Repairs Pty Ltd T/A Riverside Collision Centre, the respondent, at the Fair Work Commission. The applicant, a former employee, sought relief from a dismissal that was deemed unfair under the Fair Work Act 2009. The dismissal was ordered at the Commission's initiative under section 587, following an unpaid application. The crux of the dispute centred on the fairness of the dismissal and the procedural fairness afforded to the applicant.

The legal issues the court had to address were whether the dismissal was unjust and whether the Commission had correctly exercised its discretion in initiating the dismissal. Additionally, the court needed to determine whether the procedural fairness was observed during the dismissal process, particularly given that the application was unpaid. The court had to consider the relevant statutory provisions, case law, and the evidence presented by both parties.

In examining the evidence, the court determined that the dismissal was indeed unfair due to procedural errors and a lack of substantive fairness. The Commission's decision to initiate the dismissal was found to be inappropriate given the circumstances. The court emphasised the importance of procedural fairness and highlighted that the Commission had not adequately considered the applicant's right to be heard. Consequently, the court granted the application for relief from unfair dismissal.

The final orders included the reinstatement of the applicant to his former position and the payment of back pay and compensation for the unfair dismissal. The court also mandated that the respondent comply with the procedural fairness obligations in any future disciplinary or dismissal proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established