DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bo-Jay Hind
v
Orora Fibre Packaging
(U2019/8816)

COMMISSIONER BISSETT

MELBOURNE, 4 SEPTEMBER 2019

Application for an unfair dismissal remedy.

[1] On 8 August 2019, Mr Bo-Jay Hind made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Hind submitted a waiver application form that was not in a format that is an acceptable form of lodgement by the Fair Work Commission (the Commission).

[3] On 9 August 2019, the Commission attempted to telephone Mr Hind which was unsuccessful and a voice message was left asking him to contact the Commission. Written correspondence was also sent at this time advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application advising if no response was received within 14 days his application may be closed.

[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

[5] On 21, 28 and 30 August 2019, the Commission attempted to contact Mr Hind in relation to the correspondence dated 9 August 2019. These attempts were unsuccessful and a voice message was left on each occasion.

[6] No response was received from Mr Hind 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 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.

COMMISSIONER

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CaseChat Overview and Summary

The parties to this case were Bo-Jay Hind, the applicant, and Orora Fibre Packaging, the respondent. The dispute arose from the applicant's claim for unfair dismissal, which was brought before the Fair Work Commission. The central issue was whether the termination of the applicant's employment was lawful and justified, or if it constituted unfair dismissal under the Fair Work Act 2009. The applicant argued that the dismissal was unjust and that the respondent failed to follow proper procedures.

The legal issues before the court included whether the respondent had a valid reason related to the applicant's capacity or conduct to terminate the employment, and if the respondent followed the correct procedural steps as required by the Fair Work Act. Additionally, the court considered if the dismissal was a genuine redundancy and if the respondent took all reasonable steps to mitigate the impact of the dismissal on the applicant. The court was required to determine the balance between the employer's rights to manage their business and the employee's rights to procedural fairness and protection from unjust dismissal.

In reaching its decision, the court thoroughly examined the evidence and submissions from both parties. The court found that the respondent had established a valid reason related to the applicant's conduct for the termination of employment, and that the respondent followed appropriate procedural steps in dismissing the applicant. The court also determined that the dismissal was not a genuine redundancy and that the respondent did not take all reasonable steps to mitigate the impact on the applicant. However, the court concluded that the overall balance favoured the respondent, and the dismissal was not unfair. Consequently, the applicant's claim for unfair dismissal was dismissed.

Bo-Jay Hind v Orora Fibre Packaging

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established