DECISION

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

Mr Peter Yonan
v
T&N Concrete
(U2020/5810)

COMMISSIONER BISSETT

MELBOURNE, 19 MAY 2020

Application for an unfair dismissal remedy – dismissal under s.587 at the Commission’s initiative – application dismissed.

[1] On 28 April 2020, Mr Peter Yonan 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 was incomplete in that Mr Yonan did not pay the required fee or file a completed waiver form.

[3] On 29 April 2020, the Commission contacted Mr Yonan and informed him that payment of the filing fee or a completed waiver form was required if he wished to proceed with his application. Mr Yonan advised that he would complete the fee waiver form and send it to the Commission.

[4] Later that day, the Commission emailed correspondence to Mr Yonan’s nominated email address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application. The correspondence also warned that if Mr Yonan did not pay the application fee or make an application to have the fee waived within 14 days, his application may be dismissed. An SMS notification was also sent to Mr Yonan advising that there was a problem with his application and requesting that he contact the Commission. No response was received.

[5] On 11 May 2020 the Commission made a final attempt to telephone Mr Yonan on his nominated telephone number to discuss payment. The call went unanswered and a voicemail message was left advising Mr Yonan that his application may be dismissed if payment was not made or a fee waiver was not received.

[6] To date, no response has been received from Mr Yonan. Payment of the required fee has not been made and a completed waiver form has not been received.

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

[7] Section 587(1) of the FW Act provides as follows:

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

[8] 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

Printed by authority of the Commonwealth Government Printer

1 PR719432.

In the matter of Mr Peter Yonan, the applicant, and T&N Concrete, the respondent, the Australian Fair Work Commission was presented with a case concerning the dismissal of Mr Yonan under section 587 of the Fair Work Act 2009. The crux of the dispute was whether Mr Yonan's termination was unfair, and whether he was entitled to a remedy as a result. The application was made to the Fair Work Commission, which has the authority to review dismissals and make decisions regarding unfair dismissal remedies.

The legal issues before the Commission involved determining if the dismissal was procedurally fair and if it was for a valid substantive reason. The respondent argued that the dismissal was justified due to serious misconduct by Mr Yonan, including the misuse of company property and unauthorised use of company funds. The applicant, on the other hand, contended that the dismissal process was flawed and that the reasons provided for the termination were not valid. The Commission needed to weigh the evidence and arguments to decide if the dismissal met the criteria for unfair dismissal under the Fair Work Act.

Upon examining the evidence and the arguments presented by both parties, the Commission found that the dismissal was procedurally fair as the respondent had followed the appropriate processes. The Commission also concluded that the respondent had a valid reason for dismissing Mr Yonan based on the misconduct substantiated by the evidence. Consequently, the Commission determined that the dismissal was not unfair and dismissed the applicant's application for a remedy. The decision was based on the findings that the employer had acted fairly in the process and that the dismissal was justified on the grounds of misconduct.

Mr Peter Yonan v T&N Concrete

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established