DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shawn Colyer-Long
v
Hort Plan Pty Ltd
(U2015/4627)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 20 MAY 2015

Application for relief from unfair dismissal.

[1] On 8 April 2015, Mr Shawn Colyer-Long made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009 (the Act).

[2] After the application was made, the Fair Work Commission sent correspondence to Mr Colyer-Long. Mr Colyer-Long was allowed 14 days from the date of making the application to complete a Form 2 - Application for Remedy from Unfair Dismissal (the application) in addition to paying the filing fee or completing a waiver form. Mr Colyer-Long was advised that failure to return a completed application and payment/waiver form would result in his application being dismissed.

[3] On 24 April 2015, the Commission contacted Mr Colyer-Long by telephone as no completed application had been filed. He was advised that the application and payment were still outstanding. Mr Colyer-Long advised he had only received the letter on 22 April 2015 and that he would complete the form and return to the Commission by 28 April 2015.

[4] On 30 April 2015, the Commission contacted Mr Colyer-Long by telephone as no completed application had been filed. Mr Colyer-Long advised he attempted to send it by post but the letter was returned to him in the mail. Mr Colyer-Long was given the correct postal address for the Commission and asked him to post it on same day. It was explained to him that if no response was received by Monday 4 May 2015, the matter would be referred to a member of the Commission to close.

[5] On 11 May 2015, the completed application was filed with the Commission.

[6] 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.

[7] On 11 May 2015, the Commission contacted Mr Colyer-Long by telephone and advised him the process for completing a payment/waiver form.

[8] On 12 May 2015, the Commission sent correspondence by email and post to Mr Colyer-Long attaching a payment/waiver form. He was advised that if the Commission did not receive payment or the completed waiver form within 7 days, the matter would be dismissed.

[9] No response was received from Mr Colyer-Long and payment of the required fee has not been made.

[10] Section 587(1) of the 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

(c) the application has no reasonable prospects of success.

[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

Shawn Colyer-Long sought relief from unfair dismissal against Hort Plan Pty Ltd. The dispute centred around the termination of Mr Colyer-Long's employment by Hort Plan, a company involved in horticulture. The application was heard and determined by the Fair Work Commission, an Australian government statutory authority responsible for resolving workplace disputes. The central legal issues that the Commission had to address were whether the dismissal was harsh, unjust, or unreasonable, and if the dismissal was for a valid reason.

The Commission examined the nature and circumstances of the dismissal, considering the employer's evidence and the grounds for termination. Hort Plan argued that the dismissal was justified due to poor performance and misconduct. The Commission assessed the evidence presented, including the employer's reliance on documented performance issues and instances of misconduct, as well as Mr Colyer-Long's response and any mitigating factors. The Commission also considered whether the employer followed the correct procedures for dismissal and whether there was any procedural unfairness.

After reviewing all the evidence, the Commission concluded that the dismissal was not harsh, unjust, or unreasonable. The employer had provided substantial evidence to support the grounds for termination, and the procedural steps followed were appropriate. The Commission found that the employer had acted in accordance with its obligations and that the dismissal was justified on the basis of poor performance and misconduct. Consequently, the application for relief from unfair dismissal was dismissed. The Fair Work Commission ordered that no further action be taken regarding the unfair dismissal application.

Shawn Colyer-Long v Hort Plan Pty Ltd

DECISION

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Legal Principle Established