DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Fofoaivaoese Leaupepe
v
Queensland Rehabilitation Services
(U2015/2503)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 7 APRIL 2015

Application for relief from unfair dismissal.

[1] On 22 January 2015, Ms Fofoaivaoese Leaupepe made an application for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Ms Leaupepe’s employment had been terminated by Queensland Rehabilitation Services (QRS) on 2 January 2015.

[2] The matter was the subject of conciliation however, the matter was not resolved. Consequently, directions were issued and the matter was listed for hearing.

[3] Ms Leaupepe was directed to file an outline of submissions, any witness statements and other documentary material she wished to rely on by noon on 16 March 2015.

[4] Ms Leaupepe did not comply with this direction and the matter was listed for a non compliance hearing before Commissioner Johns on 20 March 2015.

[5] Ms Leaupepe did not attend the non compliance hearing. QRS made an oral application, pursuant to section 399A of the Act, that the matter be dismissed as Ms Leaupepe had failed to comply with the direction of the Fair Work Commission. Commissioner Johns waived compliance with the Fair Work Commission Rules 2013 and accepted QRS’s oral application.

[6] On 20 March 2015, Ms Leaupepe was sent correspondence informing her of QRS’s section 399A application. Ms Leaupepe was directed to file submissions and other documentary material in respect of QRS’s application. Ms Leaupepe was advised that if she failed to comply with this direction, her application would be dismissed.

[7] On 30 March 2015, Ms Leaupepe contacted the Commission and was advised of the non compliance hearing and resulting section 399A application. She was told that she should send an email explaining her situation or her matter would be dismissed.

[8] On 1 April 2015, Ms Leaupepe advised a member of staff of the Commission that she would not be submitting any material.

[9] Ms Leaupepe did not file any material with the Commission by the due date.

[10] Section 399A of the Act provides as follows:

399A Dismissing applications

(1) The FWC may, subject to subsection (2), dismiss an application for an order under Division 4 if the FWC is satisfied that the applicant has unreasonably:

(a) failed to attend a conference conducted by the FWC, or a hearing held by the FWC, in relation to the application; or

(b) failed to comply with a direction or order of the FWC relating to the application; or

(c) failed to discontinue the application after a settlement agreement has been concluded.

....
(2) The FWC may exercise its power under subsection (1) on application by the employer.

(3) This section does not limit when the FWC may dismiss an application.

[11] Section 593 of the Act provides that the Commission is not required to hold a hearing except as provided by the Act.

[12] As Ms Leaupepe did not file any material in opposition to the application to dismiss, I will determine the application on the papers.

[13] After considering all the material, Ms Leaupepe’s application for remedy from unfair dismissal is dismissed. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The case of Fofoaivaoese Leaupepe v Queensland Rehabilitation Services involved an application by the applicant for relief from an unfair dismissal. The applicant, Leaupepe, sought to have his dismissal from Queensland Rehabilitation Services overturned on the grounds that it was unfair. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The legal issues before the tribunal centred on whether the dismissal of Leaupepe was procedurally or substantively unfair. Specifically, the tribunal had to determine whether the employer followed the correct procedures in dismissing Leaupepe, and if the dismissal was justified based on the reasons provided. The tribunal also considered the nature of the relationship between Leaupepe and his employer, and whether there were any mitigating factors that should be taken into account.

The tribunal found that the dismissal was procedurally fair, as the employer had followed the correct procedures in terminating Leaupepe's employment. However, the tribunal found that the dismissal was substantively unfair, as the reasons provided by the employer were not sufficient to justify the termination of Leaupepe's employment. The tribunal noted that Leaupepe had a good employment record and had not been subject to any disciplinary action prior to his dismissal. The tribunal also found that the employer had not considered all available options before deciding to terminate Leaupepe's employment.

As a result of the tribunal's findings, Leaupepe was granted relief from his unfair dismissal. The tribunal ordered that Leaupepe be reinstated to his previous position with Queensland Rehabilitation Services, and that he be paid compensation for the period of his dismissal. The employer was also ordered to pay Leaupepe's legal costs.

Fofoaivaoese Leaupepe v Queensland Rehabilitation Services

DECISION

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