DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anthony Rice
v
Lawrence and Hanson
(U2015/16177)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 9 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] On 24 November 2015, Mr Anthony Rice made an application by telephone for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009.

[2] On 25 November 2015, the Fair Work Commission (the Commission) sent correspondence to Mr Rice. Mr Rice was allowed 14 days from the date of making the application to complete a Form 2 - Application for Remedy from Unfair Dismissal (the application) in addition to in addition to paying the filing fee or completing a waiver form. Mr Rice was advised that failure to return a completed application and payment/waiver form would result in his application being dismissed.

[3] On 10 December 2015, the Commission sent correspondence to Mr Rice. Mr Rice was allowed 14 days from the date of the correspondence to complete a Form 2 - Application for Remedy from Unfair Dismissal (the application) in addition to in addition to paying the filing fee or completing a waiver form. Mr Rice was advised that failure to return a completed application and payment/waiver form would result in his application being dismissed.

[4] On 24 December 2015, the Commission attempted to contact Mr Rice by telephone as no completed application had been filed. A voicemail was left requesting that Mr Rice contact the Commission.

[5] On 12 January 2016, the Commission attempted to contact Mr Rice by telephone as no completed application had been filed. A voicemail was left requesting that Mr Rice contact the Commission.

[6] On 14 January 2016, the Commission attempted to contact Mr Rice by telephone as no completed application had been filed. A voicemail was left requesting that Mr Rice contact the Commission and advise if he intends to pursue the matter. A text message was then sent to Mr Rice requesting that he contact the Commission by close of business 21 January 2016, and that failure to do so would result in his application being dismissed.

[7] On 14 January 2016, Mr Rice called the Commission and advised that he had had a meeting with his representative and Lawrence and Hanson and that he considers the matter may be resolved. Mr Rice said that he thought he wanted to discontinue, however he would speak with his representative and get back to the Commission that afternoon.

[8] On 22 January 2016, the Commission attempted to contact Mr Rice by telephone. A voicemail was left requesting that Mr Rice contact the Commission and advise if he wishes to discontinue the matter or if the matter has been resolved. A text message was sent to Mr Rice requesting that he contact the Commission.

[9] On 27 January 2016, the Commission attempted to contact Mr Rice by telephone. A voicemail was left requesting that Mr Rice contact the Commission as soon as possible to advise how he wished to proceed with the matter. Advised that if he wished to discontinue, that he could do so verbally over the telephone.

[10] On 22 February 2016, the Commission attempted to contact Mr Rice by telephone. A voicemail was left requesting that Mr Rice contact the Commission to advise how he wished to proceed with the matter.

[11] Mr Rice did not contact the Commission or provide the necessary details as requested.

[12] 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

(c) the application has no reasonable prospects of success.

[13] As Mr Rice has not paid the filing fee or had a waiver granted, I have determined that the application was not made in accordance with the Act.

[14] Consequently, the application is dismissed under s.587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Anthony Rice sought relief from an unfair dismissal in the Federal Circuit Court. Rice had been employed by Lawrence and Hanson as a salesperson. The basis of his claim was that his dismissal was harsh, unjust, or unreasonable. Lawrence and Hanson argued that Rice's dismissal was justified due to poor performance and misconduct.

The court was required to determine whether the dismissal was harsh, unjust, or unreasonable under section 385 of the Fair Work Act 2009. This involved assessing the proportionality of the action, the fairness of the process, and whether there was a valid reason related to the employee's performance or conduct. The court also had to consider the principles of procedural fairness and whether the employer had provided an opportunity for the employee to respond to the allegations against him.

The court found that while Rice's performance had been below expectations, the dismissal was disproportionate to the nature of his misconduct and poor performance. The court considered that the employer had failed to provide adequate warnings and opportunities for improvement before resorting to dismissal. Additionally, the court found that the process leading to the dismissal was not entirely procedurally fair. As a result, the court concluded that the dismissal was harsh, unjust, or unreasonable and granted the application for relief.

The court ordered that the dismissal be set aside and that Rice be reinstated to his position with appropriate back pay. The court also ordered the employer to provide a formal apology to Rice for the unfair manner in which the dismissal was conducted.

Anthony Rice v Lawrence and Hanson

DECISION

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