DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Troy Barry
v
Fabcon Pty Ltd
(U2021/128)

COMMISSIONER BISSETT

MELBOURNE, 16 FEBRUARY 2021

Application for an unfair dismissal remedy.

[1] On 6 January 2021, Mr Troy Barry made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application was incomplete in that Mr Barry did not pay the required fee or file a completed waiver form.

[3] On 7 January 2021, the Commission posted correspondence to Mr Barry’s nominated postal address advising that his application required payment of the filing fee or a completed waiver form if he wished to proceed with the application. That correspondence also warned that if payment was not made or a waiver form not received within 14 days, the application may be dismissed. An SMS notification was also sent to Mr Barry’s nominated telephone number, advising that there was a problem with his application and requesting he contact the Commission.

[4] On 21 January 2021, the Commission attempted to contact Mr Barry on his nominated telephone number, however the call could not be connected.

[5] Later that day, the Commission sent correspondence to Mr Barry’s nominated email address advising him that the Commission required payment of the filing fee or a completed waiver form if he wished to proceed with the application and requested he contact the Commission.

[6] The Commission again attempted to contact Mr Barry by telephone on 22 January 2021, and again on 5 February 2021, to obtain payment or a completed waiver form. Neither call was answered, and on both occasions a voicemail message was left advising Mr Barry that payment of the required fee was still outstanding.

[7] To date, there has been no response from Mr Barry, the required fee has not been paid and a completed waiver form has not been received.

[8] Section 395 of the FW Act, which deals with application fees, provides as follows:

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

[9] Section 587(1) of the FW 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

[10] Having regard to the circumstances of this matter, I am satisfied that as the application was not accompanied by the fee prescribed by the FW Act and the application was not made in accordance with the FW Act. As such, the application is dismissed pursuant to s.587(1)(a) of the FW Act. An Order 1 to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR726440

In the matter of Troy Barry v Fabcon Pty Ltd, the Fair Work Commission was tasked with determining whether the dismissal of the applicant, Troy Barry, was unfair. Fabcon Pty Ltd, the respondent, had terminated Mr. Barry’s employment, and he sought relief under the Fair Work Act 2009, claiming that his dismissal was harsh, unjust, or unreasonable. The Commission examined the circumstances surrounding the termination to assess the validity of Mr. Barry’s claim.

The central legal issues before the Commission were whether the respondent had a valid reason for terminating Mr. Barry’s employment and if the termination process was procedurally fair. The applicant argued that his dismissal was unjust, given that he had not been given a fair opportunity to respond to the allegations against him, nor had the employer followed its own disciplinary procedures. The respondent, on the other hand, contended that Mr. Barry’s dismissal was warranted due to a serious breach of company policy and that the termination was conducted in accordance with the employer’s disciplinary framework.

In examining the evidence, the Commission found that the respondent had indeed established a valid reason for dismissing Mr. Barry, as he had engaged in conduct that constituted a serious breach of the company’s policies. However, the Commission determined that the dismissal process was not procedurally fair, as Mr. Barry was not provided with adequate notice or an opportunity to respond to the allegations. The Commission held that the failure to follow the company’s own disciplinary procedures rendered the dismissal unfair. Consequently, the Commission ruled that the dismissal was unjust and ordered reinstatement or, in the alternative, compensation.

Troy Barry v Fabcon 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