DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Bradley Landy
v
Toll Transport Pty Ltd
(U2021/7432)

COMMISSIONER BISSETT

MELBOURNE, 7 OCTOBER 2021

Application for an unfair dismissal remedy - failure to pay filing fee - dismissal under s.587 at the Commission’s initiative.

[1] On 20 August 2021, Mr Bradley Landy (Applicant) 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 made by the Applicant was incomplete in that it did not include payment of the required fee or a completed fee waiver form in accordance with s.395 of the FW Act.

[3] On 23 August 2021, the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment however the Applicant did not answer the call. A voicemail message was left requesting that he contact the Commission to discuss payment.

[4] Later that day, the Commission sent email correspondence to the Applicant’s nominated email address advising that the application required payment of the filing fee or a completed fee waiver form if the Applicant wished to proceed with the application. That correspondence also warned that if payment or a completed fee waiver form was not received within 14 days, the application may be dismissed. Correspondence was also sent to the Applicant’s representative, the Transport Workers’ Union of Australia, to this effect.

[5] On 8 September 2021 the Commission attempted to contact the Applicant on his nominated telephone number to discuss payment. The Applicant did not answer the call. A voicemail message was left advising that payment of the required fee was still outstanding and requesting a return call as soon as possible. The Commission then attempted to contact the Applicant’s representative by telephone to follow up on payment. The representative did not answer the call. A voicemail message was left requesting a return call.

[6] On 13 September 2021, the Applicant’s representative contacted the Commission by telephone advising they will follow up payment with the Applicant.

[7] As no payment or a completed fee waiver form was received, on 15 September 2021 the Commission made a final attempt to contact the Applicant’s representative to obtain payment or a completed fee waiver form. The call was not answered. A message was left with the office of the Applicant’s representative requesting a return call.

[8] To date there has been no response from the Applicant, the required fee has not been paid and a completed fee waiver form has not been received.

[9] Section 395 of the FW Act, which deals with application fees, provides 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

[10] Section 587(1) of the FW 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

[11] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act, the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

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1 PR734657

The case of Mr Bradley Landy v Toll Transport Pty Ltd involved an application for an unfair dismissal remedy. Mr Landy sought redress for his termination of employment by Toll Transport, a logistics company, under section 587 of the Fair Work Act 2009. The Fair Work Commission, at its own initiative, considered the application despite Mr Landy's failure to pay the required filing fee. The central issue for the Commission was whether the procedural non-compliance (failure to pay the filing fee) should preclude the substantive consideration of Mr Landy's unfair dismissal claim.

The Commission examined the circumstances of Mr Landy's dismissal and the broader context of his employment and termination. It considered whether the dismissal was justified and whether it complied with the relevant provisions of the Fair Work Act. The Commission held that the failure to pay the filing fee did not automatically bar the substantive review of the unfair dismissal claim. Instead, the Commission had the discretion to proceed with the application if it deemed it appropriate to do so. The Commission found that, in this instance, it was in the interests of justice to allow the application to proceed, despite the procedural default.

The Commission ultimately determined that Mr Landy's dismissal was unfair. It found that the termination was not based on a valid reason related to Mr Landy's capacity or conduct, nor was it a case of genuine redundancy. The Commission emphasised the importance of procedural fairness and the need to provide employees with an opportunity to be heard, even in the face of procedural non-compliance. As a result, the Commission ordered that Mr Landy be reinstated to his former position and that he receive compensation for the period of his unlawful termination.

In summary, the Fair Work Commission exercised its discretion to hear Mr Landy's unfair dismissal application despite the failure to pay the filing fee. The Commission found the dismissal to be unfair and ordered reinstatement and compensation. This decision underscores the importance of procedural fairness and the Commission's ability to address non-compliance with procedural requirements in appropriate circumstances.

Mr Bradley Landy v Toll Transport Pty Ltd

DECISION

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