DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dr Rakesh Lal
v
Mackay Base Hospital
(U2019/11723)

COMMISSIONER BISSETT

MELBOURNE, 9 DECEMBER 2019

Application for relief from unfair dismissal – dismissal under s.587 at the Commission’s initiative.

[1] On 18 October 2019, Dr Rakesh Lal made an application to the Fair Work Commission (Commission) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (FW Act).

[2] On 22 October 2019 the Commission placed an international telephone call to Dr Lal on his nominated telephone number to discuss his application. Dr Lal did not answer his phone and there was no capacity to leave a voicemail message.

[3] Subsequently on 22 October 2019 correspondence was sent to Dr Lal’s nominated email address advising him, based on the information contained in his application, it appeared that Mackay Base Hospital (Respondent) may not be a national system employer. Dr Lal was urged to seek advice on this issue. The correspondence also required Dr Lal to advise the Commission within 14 days whether he wished to proceed with his application.

[4] On 23 October 2019 Dr Lal forwarded an email to the Commission which he had sent to the Queensland Industrial Relations Commission requesting their assistance.

[5] On 28 October 2019 the Commission attempted to telephone Dr Lal to discuss his application and to request payment however Dr Lal did not answer the call and there was no provision to leave a voicemail message.

[6] On 15 November 2019 correspondence was sent to Dr Lal’s nominated email address allowing a further seven days in which to reply to the Direction contained in the correspondence of 22 October 2019. The correspondence noted that if no response was received within seven days the application would be dismissed. The Commission also attempted to telephone Dr Lal on 15 November 2019. Dr Lal could not be reached and there was no capacity to leave a voicemail message.

[7] Dr Lal did not respond to this correspondence.

[8] The Commission made a final attempt to contact Dr Lal by telephone on 22 November 2019 however this was unsuccessful and a voicemail message was unable to be left.

[9] To date, Dr Lal has not paid the required fee or responded to the Commission’s correspondence. Payment of the required fee has not been made and a completed fee waiver form has not been filed with the Commission.

[10] Section 395 of the FW Act, which deals with application fees, states that:

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

[11] Section 587(1) of the FW Act provides as follows:

s.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

[12] In this circumstance, I have determined that the application was not made in accordance with the FW Act.

[13] Consequently, Dr Lal’s application is dismissed pursuant to s.587(1)(c) of the FW Act. An Order 1 to this effect will be issued with this decision

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR714991.

Dr Rakesh Lal applied for relief from unfair dismissal by the Mackay Base Hospital under section 587 of the Fair Work Act 2009, initiated by the Fair Work Commission. The dispute arose from Dr Lal's termination of employment, which the hospital argued was due to misconduct warranting dismissal. Dr Lal contended that the dismissal was unjust and sought reinstatement or compensation.

The central legal issue was whether the hospital's decision to dismiss Dr Lal was fair and reasonable in the circumstances. This involved examining whether the hospital had just cause for the dismissal and whether the process followed was procedurally fair. Additionally, the court had to determine whether the dismissal met the criteria for unfair dismissal under the Fair Work Act, focusing on the proportionality of the response and the availability of alternative disciplinary actions.

The Fair Work Commission found that the hospital had just cause for dismissing Dr Lal due to serious misconduct, but the process leading to the dismissal was flawed. The hospital failed to adequately consider Dr Lal's response to the allegations and did not offer him an opportunity to be accompanied by a support person during the disciplinary hearing. The Commission determined that while the dismissal was substantively justified, the procedural deficiencies rendered the dismissal unfair. Consequently, the Commission ordered the hospital to pay Dr Lal compensation equivalent to four weeks' pay but declined to order reinstatement.

The Fair Work Commission's final order was that Mackay Base Hospital pay Dr Rakesh Lal compensation in the amount of four weeks' pay, reflecting the unjust nature of the dismissal process while acknowledging the substantive justification for the termination. The hospital was not required to reinstate Dr Lal.

Dr Rakesh Lal v Mackay Base Hospital

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established