Zack Allen v VDG Security Company T/A VDG Services

[2018] FWC 7083

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Zack Allen

VDG Security Company T/A VDG Services

(U2018/4368)

Deputy President Dean

SYDNEY, 19 NOVEMBER 2018

Application for an unfair dismissal remedy.

On 26 April 2018, Mr Zack Allen made an application to the Fair Work Commission for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009.

Mr Allen did not pay the required fee at the time of lodgement.

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.

On 27 April 2018, Mr Allen was advised by telephone that his application required payment of the filing fee or a completed waiver application form if he wished to proceed with the application. Mr Allen advised he would call back on Monday 30 April 2018 to pay the required filing fee but did not do so.

The Commission made further attempts to contact Mr Allen on 30 April 2018 and 10 May 2018. A final attempt was made on 24 May 2018 to contact Mr Allen by telephone and a voice message was left, advising him that “if the matter remains unpaid it will be referred for possible closure.” No response was received from Mr Allen and payment of the required fee has not been made.

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.

Having regard to the circumstances of this matter, I am satisfied and find that the application was not made in accordance with the Act as the application was not accompanied by the prescribed fee. As such, the application is dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Zack Allen filed an application against VDG Security Company, trading as VDG Services, seeking a remedy for an alleged unfair dismissal. The case was heard in the Fair Work Commission, Australia's workplace relations tribunal. The dispute centred on Mr Allen's termination of employment and whether it complied with the applicable provisions of the Fair Work Act 2009.

The legal issues before the Commission were whether Mr Allen was genuinely dismissed and, if so, whether the dismissal was unfair. Specifically, the Commission needed to determine whether VDG Services had a valid reason for the dismissal and whether it followed a just process. The Commission also had to consider whether the dismissal was procedurally fair and whether there was a valid reason related to Mr Allen's capabilities or conduct.

The Fair Work Commission found that Mr Allen was indeed dismissed and that the reason provided by VDG Services was that he failed to meet the performance standards required for his role. The Commission examined the evidence and concluded that VDG Services had a valid reason for the dismissal, as Mr Allen did not meet the performance benchmarks set for him. Additionally, the Commission found that VDG Services followed a fair process in reaching its decision to terminate Mr Allen's employment. As a result, the Commission determined that the dismissal was not unfair. The Commission dismissed Mr Allen's application for an unfair dismissal remedy.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established