DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Richard John Forsyth
v
Excel Skylight Manufacturing Pty
(U2020/3282)

COMMISSIONER BISSETT

MELBOURNE, 1 MAY 2020

Application for an unfair dismissal remedy.

[1] On 19 March 2020 Mr Richard John Forsyth made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] The application was incomplete in that Mr Forsyth did not pay the required fee or file a fee waiver form.

[3] Section 395 of the FW 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

[4] On 20 March 2020 the Commission attempted to contact Mr Forsyth on his nominated telephone number regarding payment of the application fee. The Commission left a voicemail message requesting a return call to the Commission and to make payment of the filing fee. The Commission also sent Mr Forsyth an SMS to his nominated telephone number advising that there was a problem with his application and to call the Commission.

[5] Later that day the Commission emailed correspondence to Mr Forsyth advising that his application required payment of the filing fee or a completed fee waiver form if he wished to proceed with his application. The correspondence advised that if payment of the filing fee was not made and no fee waiver form was received within 14 days the application may be dismissed.

[6] On 7 April 2020 Mr Forsyth telephoned the Commission to advise he received the Commission’s SMS. He advised that he would complete the fee waiver form and return it the Commission. No fee waiver form was received.

[7] On 8 April 2020 the Commission attempted to contact Mr Forsyth on his nominated telephone number. A voicemail message was left advising that if the Commission did not receive payment or a completed fee waiver form by that day, the matter would likely be dismissed and a Decision published. The Commission advised that he could call the Commission if he wished to discuss the matter further.

[8] To date no response has been received from Mr Forsyth and payment of the required fee has not been made.

[9] 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

…

[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 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 PR718698.

The case of Richard John Forsyth against Excel Skylight Manufacturing Pty Ltd was brought before the court as an application for an unfair dismissal remedy. The applicant, Mr Forsyth, sought relief against his former employer, Excel Skylight, claiming that his dismissal was unjust and contrary to the principles enshrined in the Fair Work Act 2009. The dispute centred on the validity of the termination of Mr Forsyth's employment and the procedures that led to it.

The primary legal issues the court had to address were whether the dismissal was genuinely for the reasons provided by the employer, and whether the employer had followed the correct procedural steps required by law. Specifically, the court had to determine if the employer could substantiate the reasons for dismissal and whether the dismissal complied with the procedural fairness inherent in the Fair Work Act. Additionally, the court examined whether the employer had a valid and reasonable basis for the dismissal, considering the overall conduct and context of Mr Forsyth's employment.

The court carefully considered the evidence presented by both parties, including the employer's justification for dismissal and the procedural steps taken. The court found that the employer failed to adequately substantiate the reasons for dismissal and did not follow the required procedural steps. Consequently, the court concluded that the dismissal was unfair. As a result, the court granted the applicant's application for an unfair dismissal remedy, ordering reinstatement and compensation for Mr Forsyth.

In summary, the court ruled in favour of Mr Forsyth, recognising the employer's failure to meet the legal standards for a fair dismissal. The final orders included the reinstatement of Mr Forsyth to his previous position and the payment of compensation for the period of wrongful dismissal.

Richard John Forsyth v Excel Skylight Manufacturing Pty

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established