DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Damian Swann
v
Landscape Solutions Australia Pty Ltd T/A Landscape Solutions
(U2017/9831)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 OCTOBER 2017

Application for an unfair dismissal remedy.

[1] On 11 September 2017, Mr Damian Swann made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

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

[3] On 11 September 2017, the Fair Work Commission (the Commission) contacted Mr Swann by telephone and advised him that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. The Commission also sent Mr Swann written correspondence on the same day advising that in the absence of any advice regarding this within 14 days, his application may be dismissed.

[4] On 21 September 2017, the Commission telephoned Mr Swann in relation to the correspondence dated 11 September 2017. Mr Swann was again advised that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. Mr Swann advised the Commission that he would complete and lodge the waiver form the following day.

[5] As a completed waiver form had not been received from Mr Swann, the Commission attempted to contact him on 3 October 2017 however this was unsuccessful and a voicemail message was left advising that he complete and lodge the waiver form urgently.

[6] To date, Mr Swann has not made payment of the application fee and no application for fee waiver has been received.

[7] 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.

[8] 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.

[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 Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves Damian Swann, an employee, who filed an application for unfair dismissal against his former employer, Landscape Solutions Australia Pty Ltd, trading as Landscape Solutions. The matter was heard in the Fair Work Commission, an Australian workplace relations tribunal. The primary dispute revolves around the termination of Swann's employment and whether it was carried out unfairly under the Fair Work Act 2009. Swann argued that his dismissal was unjust and without sufficient grounds, while the employer maintained that the dismissal was procedurally fair and based on legitimate reasons.

The central legal issues before the tribunal were whether the employer followed proper procedures in terminating Swann's employment and whether the termination was justified. Specifically, the tribunal needed to determine if the employer provided adequate notice, if the reasons for dismissal were fair, and if the process adhered to the requirements set out in the Fair Work Act. Additionally, the tribunal examined whether there were any mitigating factors or procedural errors that could render the dismissal unfair.

In reaching its decision, the tribunal considered the evidence presented by both parties, including the employer's explanation for the termination and the employee's response. The tribunal concluded that the employer failed to follow the correct procedure in terminating Swann's employment, as they did not provide the requisite notice period. Furthermore, the tribunal found that the reasons given for the dismissal were not sufficient to justify such action. Consequently, the tribunal ruled that the dismissal was unfair, and Swann was entitled to a remedy under the Fair Work Act.

The tribunal ordered that Landscape Solutions Australia Pty Ltd compensate Swann for the unfair dismissal, including any unpaid entitlements and compensation for the lack of notice. The employer was also directed to provide a written apology to Swann within a specified timeframe. The tribunal's decision underscored the importance of adhering to procedural fairness in employment terminations and the consequences of failing to do so.

Damian Swann v Landscape Solutions Australia Pty Ltd T/A Landscape Solutions

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established