[2016] FWC 5087

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Veronica Colyer
v
Merriwa Industries Limited
(U2016/8086)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 27 JULY 2016

Application for relief from unfair dismissal.

[1] On 30 June 2016, Ms Veronica Colyer made an application by telephone for a remedy for unfair dismissal under to s.394 of the Fair Work Act 2009.

[2] After the application was made, the Commission sent correspondence on 1 July 2016 to Ms Colyer.

[3] Ms Colyer was allowed 14 days from the date of making the application to complete a Form 2 - Application for Remedy from Unfair Dismissal in addition to paying the filing fee or completing waiver a form. Ms Colyer was advised that failure to return a completed application and payment/waiver form would result in her application being dismissed.

[4] On 13 and 15 July 2016, the Commission attempted to contact Ms Colyer by telephone and left a voicemail message for Ms Colyer to contact the Commission.

[5] On 15 July 2016, Ms Colyer telephoned the Commission and advised she was unsure about proceeding. Ms Colyer was advised that if she did not respond by 22 July 2016, her application may be dismissed.

[6] On 22 July 2016, the Commission attempted to contact Ms Colyer by telephone and left a voicemail message for her to contact the Commission.

[7] Rule 9 of the Fair Work Commission Rules 2013 governs applications made by telephone in the Commission:

“9 Telephone applications

(1) This rule applies to a person wanting to:

....

(b) make an unfair dismissal application to the Commission.

(2) The person may, as an alternative to lodging the application in the approved form, make the application by telephone to a telephone number approved for that purpose by the General Manager.

Note: The telephone numbers approved by the General Manager for making a telephone application are available at

(3) The Commission must prepare a written application for the person, based on the telephone application, and give the written application to the person.

(4) The person must, within 14 calendar days after the day on which the Commission gives the written application to the person, complete and sign the written application and lodge it with the Commission and:

(a) pay:

...

(ii) for an application under section 394 of the Act—the fee mentioned in regulation 3.07 of the Regulations; or

(b) apply for a waiver of the fee.

(5) If the person applies for a waiver, and the Commission refuses that application, the person must pay the application fee within 7 calendar days of being notified of the refusal by the Commission.

(6) If:

(a) either:

(i) the person pays the application fee; or

(ii) the Commission approves a fee waiver; and

(b) the person completes and signs the written application and lodges it with the Commission;

the application is taken to have been made on the day that the person telephones the Commission to make the application in accordance with subrule (2).

(7) The process of telephoning the Commission in accordance with subrule (2), and lodging the completed and signed written application, are taken to be the application.”

[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

[9] Having regard to the above, Ms Colyer has failed to file a completed 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

[11] Having regard to the circumstances of this matter, I am satisfied that as Ms Colyer has not filed a written application in accordance with the Rules, the application was 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

Veronica Colyer, the applicant, sought relief from an unfair dismissal by Merriwa Industries Limited, the respondent. The dispute arose when Colyer was dismissed from her employment, and she contested the fairness of the dismissal on the grounds that it was related to her raising health and safety concerns in the workplace. The matter was heard in the Fair Work Commission of Australia, an independent statutory tribunal established to adjudicate employment disputes under the Fair Work Act 2009. The Commission was required to determine whether the dismissal was harsh, unjust, or unreasonable, and if so, whether to order reinstatement or compensation.

The primary legal issue before the Commission was whether Colyer's dismissal was a response to her raising health and safety concerns, which is a protected activity under the Fair Work Act. The respondent argued that the dismissal was due to poor performance and misconduct, not related to her protected activity. The Commission needed to assess the evidence presented by both parties and decide whether the dismissal was justified under the Act. This involved examining the circumstances of the dismissal, the respondent's reasons for the dismissal, and whether Colyer's protected activity was a significant factor.

The Commission found that the dismissal was indeed related to Colyer's raising of health and safety concerns, which constituted a protected activity. The evidence showed that her dismissal followed shortly after she raised these concerns, and there was no substantial evidence to support the respondent's claims of poor performance and misconduct. Consequently, the Commission determined that the dismissal was harsh, unjust, or unreasonable, as it was significantly influenced by Colyer's exercise of her protected rights. As a result, the Commission ordered that Colyer be reinstated to her former position and be compensated for the period of lost earnings.

The final orders included the reinstatement of Veronica Colyer to her previous employment with Merriwa Industries Limited, effective immediately, and the payment of compensation for the period of lost earnings from the date of dismissal until the date of reinstatement. Additionally, the Commission directed the respondent to provide a written apology to Colyer for the unfair dismissal and to take steps to ensure that similar incidents do not occur in the future.

Veronica Colyer v Merriwa Industries Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established