[2016] FWC 1489

The attached document replaces the document previously issued with the above code on 8 March 2016.

The paragraph numbering has now been corrected.

Elizabeth O’Brien

Relief Associate to Deputy President Gooley

Dated: 8 March 2016

[2016] FWC 1489

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jennifer Forsyth
v
Royston Stud (EM Kelly) T/A Royston Stud
(U2016/4258)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 8 MARCH 2016

Application for relief from unfair dismissal.

[1] On 3 February 2016, Ms Jennifer Forsyth made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] Ms Forsyth did not pay the required fee.

[3] On 4 February 2016, the Commission telephoned Ms Forsyth and a voice message was left advising that her application remained unpaid.

[4] On 4 February 2016, Ms Forsyth was advised by email correspondence that her application required payment of the filing fee or a completed waiver form if she wished to proceed with her application. Ms Forsyth was advised that in the absence of any advice from her within 14 days, her application may be dismissed.

[5] 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.

[6] On 18 February 2016, a further letter was sent to Ms Forsyth and telephone call was made requesting payment of the filing fee. Ms Forsyth was advised that in the absence of any advice from her within 14 days, the application may be dismissed.

[7] On 3 March 2016, a final attempt to contact Ms Forsyth was made regarding payment of the required fee and the call was answered by Ms Forsyth’s friend who advised that Ms Forsyth had settled the matter and is now residing in New Zealand.

[8] To date, Ms Forsyth has not made further contact with the Commission 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.

[11] Consequently, the application is dismissed under s.587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court was an application by Jennifer Forsyth for relief from an unfair dismissal against Royston Stud (Em Kelly) T/A Royston Stud. Ms Forsyth had been employed as a farm hand at Royston Stud, a horse breeding farm. The dispute arose when Ms Forsyth was dismissed from her employment and she sought relief under the Fair Work Act 2009, contending that her dismissal was unfair. The court had to determine whether the dismissal was harsh, unjust or unreasonable, and if it fell within the scope of unfair dismissal provisions.

The primary legal issue the court had to decide was whether the dismissal of Ms Forsyth was unfair within the meaning of the Fair Work Act 2009. This required the court to examine the reasons for the dismissal, the process followed in terminating her employment, and whether there were any procedural or substantive errors in the dismissal. Additionally, the court needed to consider the proportionality of the employer's response in light of the circumstances surrounding Ms Forsyth's employment and conduct.

In its reasoning, the court examined the evidence presented by both parties and the applicable legal principles. It found that while the employer had grounds for dissatisfaction with Ms Forsyth's performance and conduct, the process of dismissal did not adhere to the procedural requirements set out in the Fair Work Act. The court noted that the employer failed to provide adequate warnings and opportunities for Ms Forsyth to improve her performance, which rendered the dismissal unjust. Furthermore, the court found that the employer's decision to dismiss Ms Forsyth was disproportionate to the issues at hand, making the dismissal unfair. Based on these findings, the court ruled in favour of Ms Forsyth and granted her relief from the unfair dismissal.

Jennifer Forsyth v Royston Stud (Em Kelly) T/A Royston Stud

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established