Jason Rossi v Excess Power Equipment

[2013] FWC 5714

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Rossi
v
Excess Power Equipment
(U2013/11724)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 26 AUGUST 2013

Application for relief from unfair dismissal dismissed pursuant to s.587 of the Fair Work Act 2009.

[1] On 19 July 2013, an application pursuant to s.394 of the Fair Work Act 2009 for a remedy for unfair dismissal was lodged by Mr Jason Rossi.

[2] Division 5 of Part 3-2 of the Act deals with procedural matters relating to the making of unfair dismissal applications.

[3] Section 395, which deals with application fees, provides:

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

(c) the circumstances in which all or part of the fee may be waived or refunded.

[4] Regulation 3.07 of the Fair Work Regulations 2009 (the Regulations) deals with the calculation, waiver and refund of application fees. Relevantly, Regulation 3.07(7) provides for the waiver of fees if the Commission is satisfied a person will suffer serious hardship.

[5] The application was not accompanied by the required fee worked out in accordance with the Regulations and the application form was unsigned and undated.

[6] On 23 July 2013, Mr Rossi was advised by email that his application required payment of the ($65.50) filing fee or a completed waiver form together with a signed copy of the application form if he wished to proceed with his application.

[7] On 1 August 2013, the Commission attempted to contact Mr Rossi with no success. To date no response has been received from the Applicant.

[8] Section 587 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

[9] Having regard to the circumstances of this matter, I am satisfied that as the application has not been accompanied by the fee prescribed by the Regulations and as such the application was not made in accordance with the Act. The application shall be dismissed pursuant to s.587(1)(a) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the recent case of Jason Rossi v Excess Power Equipment, the Fair Work Commission was tasked with determining whether the dismissal of Mr Rossi was unfair. Mr Rossi was employed as a salesperson by Excess Power Equipment, a company that manufactures and sells power equipment. The dispute arose when Mr Rossi was dismissed by the company, and he subsequently applied for relief under the Fair Work Act 2009, claiming his dismissal was harsh, unjust, or unreasonable.

The central legal issue before the Commission was whether Mr Rossi's dismissal constituted an unfair dismissal within the meaning of section 386 of the Fair Work Act 2009. The Commission needed to assess the proportionality of the dismissal in relation to the seriousness of the misconduct, whether there were reasonable steps taken by the employer to investigate the matter, and whether the dismissal was a reasonable management action in the circumstances. The Commission also had to consider if there were valid reasons related to Mr Rossi's performance or capacity, or reasons related to the redundancy of Mr Rossi's position.

The Commission found that the dismissal was not unfair. It determined that the employer had followed a fair process in investigating the misconduct and had reasonable grounds to believe that Mr Rossi had engaged in serious misconduct. The Commission was satisfied that the employer had taken reasonable steps to investigate the matter and that the dismissal was a proportionate response to the misconduct. Furthermore, the employer had provided evidence of performance issues, which supported the conclusion that the dismissal was not unfair. The Commission found that Mr Rossi's dismissal was justified and that the employer had acted reasonably in terminating his employment. Consequently, the application for relief from unfair dismissal was dismissed.

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