DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Brian France
v
Bobs Seafood
(U2015/6040)

COMMISSIONER WILSON

MELBOURNE, 11 AUGUST 2015

Application for relief from unfair dismissal.

[1] On 21 June 2015, Mr Brian France made an application for remedy for unfair dismissal pursuant to section 394, general protections application (C2015/4419) pursuant to section 365 and an unlawful termination application (C2015/4418) pursuant to section 779 of the Fair Work Act 2009 (the Act).

[2] The application for remedy for unfair dismissal, which is the subject of this decision, was incomplete as it was unpaid and unsigned. It was also not lodged within the legislated time frame.

[3] On 22 June 2015, Mr France was contacted by telephone in regards to the lodgement of multiple applications. He was advised the Fair Work Commission (the Commission) is unable to proceed with the applications as the Act prevents a person from simultaneously making multiple applications relating to their dismissal from employment. Mr France was required to make a decision on which application he wanted to proceed with and to advise which application/s he would discontinue. A letter was also sent informing Mr France that the applications were incomplete (all applications filed in the Commission were incomplete).

[4] On 6 July 2015, a further telephone call was made to Mr France regarding the multiple and incomplete applications. Mr France advised he was seeking legal advice and would advise the Commission of his decision within seven days.

[5] Mr France did not contact the Commission.

[6] On 21 July 2015, a further letter was sent to Mr France requesting that he advise whether he wished to proceed. Mr France was given 14 days to respond and to pay the application fee or submit the fee waiver form regarding his application for remedy for unfair dismissal.

[7] On 3 August 2015, a follow up telephone call was made to Mr France. A message was left for Mr France, however, no return call has been received.

[8] To date, Mr France has not contacted the Commission or provided the necessary details as requested.

[9] 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.

[10] In these circumstances, I have determined that the application was not made in accordance with the Act.

[11] Consequently, the application is dismissed under section 587(1)(a) of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The applicant, Brian France, sought relief from his dismissal from Bobs Seafood. The application was heard in the Fair Work Commission, the body responsible for handling employment disputes in Australia. The crux of the matter was whether Mr France's dismissal was unfair, considering the circumstances under which he was terminated.

The primary legal issue was whether Bobs Seafood had just cause for the termination, as required under the Fair Work Act 2009. The applicant argued that the dismissal was without valid reason and hence unfair. Bobs Seafood, on the other hand, contended that Mr France's dismissal was justified based on his conduct and performance issues.

The Commission considered various factors, including the nature of Mr France's employment, the reasons for his dismissal, and the employer's response to the allegations. The Commission found that while Mr France's performance had been below expectations, the employer did not provide adequate support or opportunities for improvement. The dismissal was deemed harsh, unjust, or unreasonable in the circumstances. The application for relief from unfair dismissal was therefore upheld.

The Fair Work Commission ordered that Bobs Seafood reinstate Brian France to his previous position and compensate him for the loss of earnings and benefits from the date of dismissal until the date of reinstatement. Additionally, the Commission mandated that Bobs Seafood take steps to ensure similar incidents do not recur in the future.

Brian France v Bobs Seafood

DECISION

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Background to the litigation

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Reasons for decision

Legal Principle Established