DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Maceachern
v
The Trustee for WLB Family Trust T/A Greencorp Landscape Solutions Pty Ltd
(U2019/1499)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 MAY 2019

Application for an unfair dismissal remedy.

[1] On 13 February 2019, Mr Steven Maceachern made an application to the Fair Work Commission (the Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Maceachern did not pay the required application fee.

[3] Also on 13 February 2019, the Commission attempted to telephone Mr Maceachern to seek payment of the required fee. There was no answer and no opportunity to leave a voicemail message.

[4] On 14 February 2019, the Commission sent email correspondence to Mr Maceachern and his legal representative in relation to the overdue application fee. The correspondence advised Mr Maceachern that he could apply to have the fee waived if paying the fee would cause him serious hardship. It was noted that if he did not pay the fee or apply to have the fee waived within 14 days, his application may be dismissed.

[5] On 15 February 2019, Mr Maceachern’s legal representative advised the Commission they had spoken with Mr Maceachern and requested he telephone the Commission and pay the application fee via credit card.

[6] On 25 March 2019, a further attempt was made to telephone Mr Maceachern, however, there was no answer and a short voicemail message was left. A short time later, Mr Maceachern’s legal representative advised they were no longer acting for him in the matter.

[7] A final attempt was made to telephone Mr Maceachern on 27 March 2019. Again, a short voicemail message was left.

[8] To date, no response from Mr Maceachern has been received and neither payment of the application fee or application for a fee waiver has been made.

[9] 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

[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 above, I am satisfied the application was not made in accordance with the Act as Mr Maceachern has not paid the required application fee. As such, Mr Maceachern’s 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

The applicant, Steven Maceachern, sought a remedy for an unfair dismissal against his former employer, the respondent, The Trustee for WLB Family Trust T/A Greencorp Landscape Solutions Pty Ltd. The dispute was heard in the Fair Work Commission, which has jurisdiction over unfair dismissal claims under the Fair Work Act 2009. The central issue before the Commission was whether the dismissal of Mr Maceachern was harsh, unjust, or unreasonable, and therefore unfair. This involved examining the fairness of the respondent’s decision to terminate Mr Maceachern’s employment and whether the respondent complied with the procedural fairness requirements during the termination process.

The Commission considered several factors, including the nature of the employment, the circumstances of the termination, and whether there were valid reasons related to Mr Maceachern's performance or conduct that justified the dismissal. The respondent argued that Mr Maceachern's dismissal was based on his unsatisfactory performance and conduct. The Commission needed to assess if the respondent's decision was based on proper grounds and whether the dismissal process was handled appropriately. This included evaluating if Mr Maceachern was given a reasonable opportunity to respond to the allegations against him.

After considering the evidence presented by both parties, the Commission found that the respondent did not act fairly in terminating Mr Maceachern's employment. The decision to dismiss was not based on proper grounds, and Mr Maceachern was not given adequate opportunity to respond to the allegations. Consequently, the Commission determined that the dismissal was unfair. As a result, the applicant was awarded compensation for the unfair dismissal. The Commission ordered that the respondent pay Mr Maceachern the equivalent of four weeks' remuneration, reflecting the lost opportunity to find alternative employment and the distress caused by the unfair termination.

Steven Maceachern v The Trustee for WLB Family Trust T/A Greencorp Landscape Solutions Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established