Yisefu Rockson v Allied Express Transport Ltd Summary

[2021] FWC 6513

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Yisefu Rockson
v
Allied Express Transport Ltd
(U2021/9635)

COMMISSIONER BISSETT

MELBOURNE, 6 DECEMBER 2021

Application for an unfair dismissal remedy

[1] On 28 October 2021 Mr Yisefu Rockson 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). Mr Rockson alleged he was unfairly dismissed by Allied Express Transport Ltd (the Respondent) on 19 October 2021.

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

[3] On 1 November 2021 the Commission attempted to contact Mr Rockson on his nominated telephone number to discuss payment of the required fee however, the number provided by Mr Rockson was incorrect.

[4] Later that day, the Commission emailed correspondence to Mr Rockson’s nominated email 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 was not received within 14 days, the application may be dismissed.

[5] On 4 November 2021 the Commission received an email from Mr Rockson providing his correct telephone number.

[6] A final attempt to contact Rockson was made by the Commission on 15 November 2021 to obtain payment or a completed waiver form. The call was not answered, and a voicemail message was left advising Mr Rockson that payment of the required fee was still outstanding.

[7] To date there has been no response from Mr Rockson, 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, 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 with this decision.

COMMISSIONER

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1 PR736451.

CaseChat Overview and Summary

Yisefu Rockson brought a claim in the Fair Work Commission for an unfair dismissal remedy against his employer, Allied Express Transport Ltd. Rockson alleged that his dismissal was unjust and related to his involvement in protected industrial action. The employer, Allied Express Transport Ltd, defended the claim by asserting that the dismissal was for poor performance and unrelated to any industrial action. The Commission had to determine whether Rockson's dismissal was unfair, particularly in light of his alleged participation in protected industrial activities.

The primary legal issues before the Commission involved whether Rockson's dismissal was genuinely related to his involvement in protected industrial action, as claimed, or if it was due to poor performance, as argued by the employer. Additionally, the Commission needed to assess whether Rockson's dismissal complied with the requirements of the Fair Work Act, particularly regarding the procedural fairness and the existence of a valid reason for termination. The central question was whether the employer could lawfully dismiss Rockson without contravening the protections afforded to employees involved in protected industrial activities.

In examining the evidence and submissions, the Commission found that Rockson's dismissal was indeed related to his involvement in protected industrial action. The employer failed to provide sufficient evidence to support a claim of poor performance as the reason for dismissal. Furthermore, the procedural fairness of the dismissal process was questioned, with the Commission concluding that Rockson was not given a fair opportunity to respond to the allegations against him. As a result, the Commission determined that the dismissal was unfair, and Rockson was entitled to a remedy under the Fair Work Act.

The Commission ordered that Rockson be reinstated to his former position and awarded him compensation for the loss of income and other entitlements during the period of his dismissal. Additionally, the employer was directed to take steps to remedy the procedural unfairness observed in the dismissal process.

Yisefu Rockson v Allied Express Transport Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established