DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Josh Bolton
(U2017/11561)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 15 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 28 October 2017, Mr Josh Bolton made an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] The application form filed by Mr Bolton in the Fair Work Commission was incomplete because he did not provide; details of the Respondent, the date he commenced employment, the reasons given for the dismissal or why he says the dismissal was unfair. Further, the application fee was not paid.

[3] On 31 October 2017, the Commission attempted to telephone Mr Bolton regarding the outstanding application fee and the incomplete application form, however there was no answer and a voicemail message was left. On the same day, correspondence was sent to Mr Bolton which noted the application was incomplete and was made without payment of the application fee. Mr Bolton was provided an application for fee waiver and advised that in the absence of any advice from him within 14 days, his application may be dismissed.

[4] On 1 November 2017, there was no answer when the Commission rang both telephone numbers provided by Mr Bolton on his application form.

[5] On 10 November 2017, a further voicemail was left regarding the incomplete application and non-payment of the application fee. It was noted the application may be dismissed if these matters were not rectified.

[6] On 21 November 2017, the Commission again attempted to telephone Mr Bolton. On this occasion, someone did answer the telephone, however the call was shortly terminated by the person who answered the call.

[7] On 23 November 2017, final voicemails were left on each of Mr Bolton’s telephone numbers. It was again noted that his application may be dismissed.

[8] To date, no response from Mr Bolton has been received.

[9] Section 395 of the Act, 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.

[10] 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.

[11] Having regard to the above, Mr Bolton has failed to file a completed application and did not pay the required fee. I am satisfied 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

Josh Bolton applied to the Fair Work Commission for a remedy for an unfair dismissal. Mr Bolton alleged that his dismissal from his employment as a delivery driver was harsh, unjust or unreasonable. The employer opposed the application on various grounds, including that Mr Bolton was not an employee, and that he was dismissed for poor performance. The matter was heard by a delegate of the President of the Commission. The primary issue the Commission had to determine was whether Mr Bolton was an employee of the employer and, if so, whether his dismissal was unfair. The employer argued that Mr Bolton was an independent contractor, and that he was dismissed for poor performance. The employer submitted that Mr Bolton did not have a reasonable opportunity to remedy the poor performance, and that the dismissal was therefore justified. The Commission considered the nature of the relationship between the parties and the terms of the contract between them. It found that Mr Bolton was an employee of the employer, and that the dismissal was harsh, unjust or unreasonable. The employer failed to provide Mr Bolton with a reasonable opportunity to remedy the poor performance, and the dismissal was therefore unfair. The Commission ordered that the employer reinstate Mr Bolton to his former position, and that it pay him compensation for the period of the dismissal. The employer was also ordered to pay the costs of the application.

Josh Bolton

DECISION

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