DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Daniel Ropciuc
v
Australian Red Cross
(U2013/17809)

COMMISSIONER WILSON

MELBOURNE, 29 MARCH 2016

Application for relief from unfair dismissal remedy - Application to relist application for arbitration - Whether agreement reached in conciliation - Whether reasonable prospect of success.

Introduction

[1] This decision concerns an application in August 2015 by Daniel Ropciuc for the Fair Work Commission to list for arbitration an application he made for an unfair dismissal remedy against his former employer, the Australian Red Cross, in December 2013.

[2] Directions and Preliminary Findings were issued by me in relation to the application in August and December 2015, respectively, and a hearing was convened in March 2016. Illness on the part of Mr Ropciuc has delayed the ability of the matter to be determined sooner.

Background

[3] Mr Ropciuc’s application for unfair dismissal remedy was made to the Fair Work Commission on 23 December 2013.

[4] The application discloses that Mr Ropciuc’s employment with Australian Red Cross commenced on 9 August 2011 and ended with a termination taking effect on 2 December 2013, with the notification of termination itself being given on 5 December 2013.

[5] The application further discloses that Mr Ropciuc had been employed in a nursing position working permanent night duty, and that his termination came after several allegations were put to him by Australian Red Cross which appear to go to his interaction with one or more other employees. An investigation appears to have been conducted into those allegations with the investigator finding three of the allegations (respectively pertaining to harassment of a co-worker about same-sex marriage, and complaints made by the Applicant to management about another employee also working at the Lady Lawley Cottage in Perth, Western Australia) amounted to harassment, with an external complaint made to the Australian Health Practitioner’s Regulatory Authority about a co-worker similarly being found to be harassment.

[6] In referring to those allegations and the status of the investigation, I emphasise that no findings have been made by me either as to the conduct alleged, the findings referred to or the accuracy or fairness of those findings. Mr Ropciuc strongly contests the matters to which I have referred.

[7] Mr Ropciuc was apparently informed of those findings and that Australian Red Cross considered they were sufficient to lead to the termination of his employment, and that he was then given the opportunity to provide such further responses as he desired for the Respondent to take into account.

[8] Mr Ropciuc’s originating application seeks that he be reinstated as soon as possible, however I am unaware of whether he maintains that position now. He is now living in in Romania.

[9] The Respondent’s material filed at the point of lodging its Form F3 - Employer Response Form on 6 February 2014 is extensive.

[10] The material filed by the Australian Red Cross confirms the period of Mr Ropciuc’s employment and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FWC 1858
Decision Date: 29 MARCH 2016

CaseChat Overview and Summary

Daniel Ropciuc sought relief from an unfair dismissal remedy against the Australian Red Cross. The matter was before the Fair Work Commission, which had previously found the dismissal of Mr Ropciuc to be unfair. The Australian Red Cross applied to relist the application for arbitration to the Federal Court. The Commission was required to determine whether an agreement had been reached in conciliation and whether there was a reasonable prospect of success in the arbitration.

The Commission examined the evidence of the conciliation process and found that while there had been discussions, no formal agreement had been reached. The Australian Red Cross argued that an informal agreement had been made, but the Commission found that there was insufficient evidence to support this claim. The Commission also considered whether there was a reasonable prospect of success in the arbitration and found that the evidence did not support a conclusion that there was such a prospect.

Accordingly, the Commission dismissed the application to relist the matter for arbitration. The Australian Red Cross was not entitled to relief from the unfair dismissal remedy, and the previous decision of the Commission stood. The Commission did not make any further orders.

Orders