DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Stephen Jones
v
Load Restraints Systems
(U2015/8735)

COMMISSIONER WILSON

MELBOURNE, 23 JULY 2015

Application for relief from unfair dismissal.

[1] On 22 June 2015, Mr Stephen Jones made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

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

[3] On 24 June 2015, Mr Jones 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. On the same date, the Fair Work Commission attempted to contact Mr Jones, the call was not answered and a voice messaged was left.

[4] 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

[5] On 8 July 2014, the Commission contacted Mr Jones who advised he could not afford the filing fee. He was advised of applying for a waiver of the payment fee but he advised he did not wish to apply for the waiver. He requested the Commission contact him on 13 July 2015 as he believed he would funds on that date.

[6] On 14 July 2015 and 21 July 2015, the Commission attempted to contact Mr Jones in relation to the correspondence dated 24 June 2015. A voice message was left advising Mr Jones to contact the Commission regarding payment of the filing fee.

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

[8] 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

[9] 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.

COMMISSIONER

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CaseChat Overview and Summary

Stephen Jones applied for relief from an unfair dismissal, arguing that he had been dismissed due to his participation in protected industrial action. The application was heard by the Fair Work Commission. The crux of the dispute was whether Mr Jones' dismissal was a result of his involvement in industrial action protected under the Fair Work Act 2009, or if it was due to other reasons unrelated to the action. The central issue before the Commission was whether Mr Jones' dismissal constituted an unfair dismissal, as defined under section 386 of the Fair Work Act. Additionally, the Commission needed to determine if the employer's reasons for dismissal were genuine and not a pretext for protecting industrial action.

The Commission considered the evidence presented by both parties and examined the circumstances surrounding Mr Jones' dismissal. It found that the employer had provided evidence that the dismissal was due to performance issues and not because of Mr Jones' involvement in the protected industrial action. The employer's witnesses testified that Mr Jones had been consistently underperforming and that the dismissal was based on these grounds. The Commission concluded that the employer had demonstrated that the dismissal was not related to the protected industrial action and was therefore not an unfair dismissal. The application was dismissed, and the employer's decision to terminate Mr Jones' employment was upheld as fair and lawful.

No specific orders were made as the application was dismissed. The Commission ruled that Mr Jones' dismissal was not unfair and that the employer had acted within its rights under the Fair Work Act. The employer's decision to terminate Mr Jones' employment was upheld, and the application for relief from unfair dismissal was dismissed in its entirety.

Stephen Jones v Load Restraints Systems

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established