Maximilien Foerster v Rip Curl Pty Ltd Summary

[2014] FWC 3702

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Maximilien Foerster
v
Rip Curl Pty Ltd
(U2014/6059)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 4 JUNE 2014

Application for relief from unfair dismissal.

[1] On 28 March 2014, Mr Maximilien Foerster made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Foerster advised that he commenced employment with Rip Curl Pty Ltd on 17 December 2013 and that his dismissal took effect on 19 March 2014.

[3] On 1 April 2014, correspondence was sent to Mr Foerster pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required Mr Foerster to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] On 1 May 2014, correspondence was sent to Mr Foerster allowing a further 14 days in which to reply, after which time the application would be dismissed.

[5] To date, Mr Foerster did not reply to that correspondence.

[6] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[7] Section 383 of the Act sets out the minimum employment period:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[8] In the circumstances of this matter, I am satisfied Mr Foerster has not completed the required minimum employment period and his application has no reasonable prospects of success.

[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

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

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The case of Maximilien Foerster v Rip Curl Pty Ltd involved an application by the applicant for relief from an unfair dismissal. The applicant, Foerster, sought to challenge the dismissal on the basis that it was harsh, unjust, or unreasonable. The respondent, Rip Curl Pty Ltd, opposed the application on various grounds. The matter was heard in the Fair Work Commission, which is responsible for resolving disputes related to unfair dismissal.

The legal issues that the Commission had to decide were whether the dismissal was harsh, unjust, or unreasonable, and whether the employer had just cause for the dismissal. The key consideration was whether the employer's actions were proportionate and reasonable in the circumstances. The Commission had to examine the evidence and arguments presented by both parties to determine if the dismissal was justified under the Fair Work Act.

The Commission found that the dismissal was not harsh, unjust, or unreasonable. The evidence showed that the applicant's conduct warranted the dismissal, and the employer acted reasonably in terminating the employment. The Commission was satisfied that the employer had just cause for the dismissal, and the dismissal was proportionate to the applicant's actions. Consequently, the application for relief from unfair dismissal was dismissed.

The Fair Work Commission did not grant the applicant relief from the unfair dismissal. The decision highlighted the importance of employers having just cause for dismissal and acting reasonably in the process. The Commission's decision serves as a reminder that employees who engage in serious misconduct may face dismissal without it being deemed unfair.

Maximilien Foerster v Rip Curl Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established