DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Sinclair
v
Crane Distribution Limited (Fletcher Building Group) T/A Tradelink
(U2016/8512)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 4 OCTOBER 2016

Application for relief from unfair dismissal.

[1] On 22 July 2016, Mr Robert Sinclair made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Sinclair did not pay the required fee.

[3] On 25 July 2016, Mr Sinclair was advised by email correspondence that his application required payment of the filing fee or a completed waiver form if he wished to proceed with his application.

[4] On 27 July 2016, a follow up call was made to Mr Sinclair to query whether he intended to lodge an application for waiver of filing fee or pay the required fee. Mr Sinclair advised that it was his intention to complete the waiver form and return it to the Commission.

[5] On 3 August 2016, Mr Sinclair was contacted by telephone to check on the progress of his waiver application. Mr Sinclair advised that he now wished to make payment instead but advised that he was currently unable to do so and expected to be able to make payment soon.

[6] On 10, 12 and 30 August 2016, the Commission attempted to call Mr Sinclair. All calls were unanswered and messages were left for Mr Sinclair to contact the Commission regarding payment of the filing fee.

[7] 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

[8] On 5 September 2016, the Commission attempted to contact Mr Sinclair in relation to the correspondence dated 25 July 2016. A message was left for him to contact the Commission.

[9] No response has been received from Mr Sinclair and payment of the required fee has not been made.

[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

[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 Act, 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

CaseChat Overview and Summary

Robert Sinclair sought relief from his dismissal by Crane Distribution Limited, trading as Tradelink, before the Fair Work Commission. The dispute centred around the termination of Mr Sinclair’s employment and his claim that the dismissal was unfair and without valid reason. The Commission was tasked with determining whether the dismissal complied with the Fair Work Act 2009 and if it was procedurally fair and just. Mr Sinclair argued that he was dismissed without cause and that the process leading to his termination was flawed.

The legal issues before the Commission included whether Mr Sinclair’s dismissal was for genuine operational reasons, and if the employer followed the correct procedural steps in terminating his employment. The Commission also had to consider whether the employer had acted unreasonably or unfairly in the context of the dismissal. These issues required a careful analysis of the evidence and the application of relevant sections of the Fair Work Act.

In examining the evidence, the Commission found that the employer had not provided a valid reason for Mr Sinclair’s dismissal and that the procedural steps leading to his termination were not followed correctly. The employer failed to provide a fair opportunity for Mr Sinclair to respond to the allegations against him, which constituted a procedural unfairness. The Commission concluded that the dismissal was unjust and that Mr Sinclair was entitled to relief. The employer’s failure to establish a valid reason for the dismissal and to follow proper procedures resulted in the Commission ordering reinstatement and compensation for Mr Sinclair.

Robert Sinclair v Crane Distribution Limited (Fletcher Building Group) T/A Tradelink

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established