Cawdor Ross v Shadamcorp Pty Ltd T/A Aranyani Bison Adventure Tourism Park Summary

[2014] FWC 4720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Cawdor Ross
v
Shadamcorp Pty Ltd T/A Aranyani Bison Adventure Tourism Park
(U2014/7863)

COMMISSIONER WILSON

MELBOURNE, 15 JULY 2014

Application for relief from unfair dismissal.

[1] On 13 June 2014, Mr Cawdor Ross made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

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

[3] On 13 June 2014, the Fair Work Commission (the Commission) contacted Mr Ross to advise his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. Mr Ross advised that he had been unable to locate the waiver form on the Commission website and so he had completed a Form F1 instead.

[4] On 13 June 2014, the Commission sent a waiver form to Mr Ross by email correspondence.

[5] On 23 June 2014, the Commission sent email correspondence to Mr Ross requesting him to complete the application for waiver of filing fee. Mr Ross was allowed 14 days from the date of making the application to sign and return his completed application for waiver of filing fee. Mr Ross was advised that failure to return his completed waiver application would result in his application being dismissed.

[6] 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.

[7] On 3 July 2014, the Commission contacted Mr Ross in relation to the correspondence dated 23 June 2014.

[8] No response has been received from Mr Ross and payment of the required fee has not been made.

[9] 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.

[10] 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 applicant, Cawdor Ross, applied for relief from an unfair dismissal from the respondent, Shadamcorp Pty Ltd T/A Aranyani Bison Adventure Tourism Park. The application was heard in the Fair Work Commission. The central dispute revolved around whether Mr. Ross was unfairly dismissed from his employment under the Fair Work Act 2009. Specifically, the case examined the validity of the dismissal in light of the provisions governing unfair dismissals, particularly focusing on whether the dismissal was harsh, unjust, or unreasonable.

The court had to determine several key issues: whether Mr. Ross was genuinely dismissed, whether the dismissal was due to his performance or conduct, and if the dismissal was a proportionate response to the circumstances. Additionally, the court evaluated whether the respondent complied with procedural fairness by providing Mr. Ross with the opportunity to respond to the allegations against him.

In its reasoning, the commission assessed the employer's evidence and Mr. Ross's submissions. It found that while the employer had raised concerns about Mr. Ross's performance and conduct, these issues were not adequately addressed or resolved before the dismissal. The commission concluded that the dismissal was harsh because Mr. Ross was not provided with sufficient opportunities to improve or address the concerns. Furthermore, the lack of procedural fairness in the dismissal process contributed to the finding of unfairness. Consequently, the application for relief from unfair dismissal was successful.

The commission ordered that Mr. Ross be reinstated to his position and awarded him compensation for the period of loss of income. Additionally, it directed that the respondent pay the costs of the application.

Cawdor Ross v Shadamcorp Pty Ltd T/A Aranyani Bison Adventure Tourism Park

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established