DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Barlow
v
The Fresh Network
(U2014/16795)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 16 MARCH 2015

Application for relief from unfair dismissal.

[1] On 31 December 2014, Mr Trevor Barlow made an application for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009 (the Act).

[2] On 6 January 2015, correspondence was sent to Mr Barlow advising that the application and waiver application form, which were received by facsimile, were incomplete.

[3] On 22 January 2015, Mr Barlow phoned the Fair Work Commission’s helpline seeking the status of his application. Mr Barlow provided new contact details and was again advised his waiver application was incomplete. Mr Barlow advised he would resubmit.

[4] On 18 February 2015, the Commission attempted to contact Mr Barlow by telephone and a message was left on his mobile asking him to contact the Commission.

[5] On 18 February 2015, the Commission forwarded correspondence to Mr Barlow requesting a completed application and waiver application form. The letter stipulated that in the absence of any advice from Mr Barlow within 14 days, the application may be dismissed.

[6] On 4 March 2015, an attempt to contact Mr Barlow was unsuccessful and a voice message was left on his mobile in regards to his incomplete applications.

[7] Mr Barlow did not contact the Commission, provide the necessary documentation or pay the required fee as requested.

[8] 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.

[9] Having regard to the above, Mr Barlow has failed to file a completed waiver application and did not pay the required fee.

[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 the application form was not complete and not accompanied by the fee as prescribed by the Act and is therefore, not made in accordance with the Act. For this reason, the application is dismissed under s.587(1)(a) of the Act. An Order giving effect to this decision will be issued accordingly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Trevor Barlow filed an application for relief from unfair dismissal against The Fresh Network in the Fair Work Commission. Mr Barlow contended that his dismissal was unjust, alleging it was due to his membership in a union and participation in lawful industrial action. The Fresh Network argued that the dismissal was based on valid reasons unrelated to union activities.

The central issue before the Commission was whether the dismissal was genuinely related to Mr Barlow's union activities or if it was for other legitimate reasons. The Commission had to determine if the employer had followed proper procedures and if the dismissal was consistent with the provisions of the Fair Work Act. Furthermore, the Commission needed to assess if the dismissal was harsh, unjust, or unreasonable in the circumstances.

The Commission examined the evidence provided by both parties and found that Mr Barlow's dismissal was not related to his union activities or the industrial action. Instead, the employer demonstrated that the dismissal was due to poor performance and misconduct. The Commission concluded that the employer had followed appropriate procedures and that the dismissal was not harsh, unjust, or unreasonable. Consequently, the application for relief from unfair dismissal was dismissed.

Trevor Barlow v The Fresh Network

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established