DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brendan Hiscox
v
Silvan Food Company Pty Ltd
(U2020/1184)

COMMISSIONER BISSETT

MELBOURNE, 25 FEBRUARY 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative.

[1] On 3 February 2020 Mr Brendan Hiscox 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).

[2] The application was incomplete in that Mr Hiscox did not pay the required fee or file a completed waiver form.

[3] On 5 February, the Commission attempted to contact Mr Hiscox on his nominated mobile telephone number to discuss payment however Mr Hiscox did not answer the call. A voicemail was left advising that payment of the application fee was still outstanding.

[4] Later that day, the Commission sent correspondence to Mr Hiscox’s nominated email address advising him that his application required payment of the filing fee or a completed fee waiver form if he wished to proceed with his application. The correspondence also warned that if Mr Hiscox did not pay the application fee or make an application to have the fee waived within 14 days his application may be dismissed. Mr Hiscox did not respond to the correspondence.

[5] A final attempt to contact Mr Hiscox was made by the Commission on 14 February 2020 to obtain payment details. The call went unanswered and a voicemail message was left advising Mr Hiscox that payment of the application fee was still outstanding.

[6] To date there has been no response from Mr Hiscox and payment of the required fee has not been made.

[7] Section 395, which deals with application fees, states 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

[8] Section 587(1) of the 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

[9] 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 Order¹ to this effect will be issued shortly.

COMMISSIONER

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CaseChat Overview and Summary

The applicant, Brendan Hiscox, has brought an application before the Fair Work Commission against Silvan Food Company Pty Ltd, the respondent, seeking relief in respect of his dismissal, which was carried out under section 587 of the Fair Work Act 2009. The dismissal was initiated by the Fair Work Commission. Mr Hiscox argues that his termination was unjust and seeks reinstatement or compensation. The respondent contends that the dismissal was justified and compliant with the procedural and substantive requirements of the Fair Work Act.

The primary legal issues before the Commission were whether the dismissal was for a valid reason and whether the respondent followed the appropriate procedures as mandated by the Fair Work Act. The Commission needed to determine if the dismissal was genuine, relating to the applicant's capability or conduct, and if the employer had a valid reason to terminate the employment relationship. Additionally, the Commission had to consider whether the respondent complied with the procedural fairness obligations by providing the applicant with appropriate notice and an opportunity to respond.

The Commission carefully reviewed the evidence presented by both parties, including the documentation related to the employment relationship and the events leading to the dismissal. It was found that the applicant's termination was based on his capability to perform his job duties, as evidenced by performance issues and a lack of improvement despite warnings. The Commission concluded that the dismissal was for a valid reason, as the employer had reasonable grounds to believe that the applicant was not capable of performing his role effectively. Furthermore, the Commission determined that the respondent followed the necessary procedural steps, ensuring that the applicant had an opportunity to respond to the allegations against him. Consequently, the Commission dismissed the application, finding that the dismissal was fair and in accordance with the law.

No further orders were made by the Commission as the application for unfair dismissal remedy was dismissed.

Brendan Hiscox v Silvan Food Company Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established