[2021] FWC 604

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365 – General protections

Mr Matthew Rawson
v
Randstad Pty Limited
(C2020/8631)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 26 FEBRUARY 2021

Application to deal with contraventions involving dismissal.

[1] Mr Matthew Rawson (Applicant) has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). He alleges that he was dismissed by Randstad Pty Limited in contravention of the general protection provisions of the Act.

[2] I have decided to dismiss the application. The reasons for this decision follow.

Context

[3] The application was received by the Commission on 26 November 2020.

[4] On 27 November 2020, the Commission telephoned the Applicant regarding the unpaid lodgement fee. A voicemail message was left requesting the Applicant contact the Commission.

[5] That day, a letter was emailed to the Applicant and his representative, Employee Dismissal Claims advising that the Applicant must pay the lodgement fee or file a completed application for waiver of the lodgement fee (waiver application) within 14 days, or the application may be dismissed. A SMS text message was also sent to the Applicant’s nominated telephone number advising the Applicant of a problem with his application and requesting that he contact the Commission.

[6] On 15 and 17 December 2020, the Commission telephoned the Applicant regarding his application which remained incomplete. On each occasion, a voicemail message was left requesting the Applicant urgently contact the Commission.

[7] On 18 December 2020 the Commission telephoned the Applicant, however the call was not answered and there was no option to leave a voicemail message. Shortly thereafter, a telephone call was made to the Applicant’s representative, however the call was unanswered. That day, a letter was emailed to the Applicant and his representative providing a further period of 14 days for the lodgement fee to be paid or a completed waiver application to be filed. The letter stated that in the absence of any advice from the Applicant within this period, the application may be dismissed. A SMS text message was also sent to the Applicant in respect of this matter and requesting that he contact the Commission.

[8] To date, the Applicant has not paid the lodgement fee or filed a completed waiver application.

Legislative framework

[9] In relation to an application made pursuant to s 365 of the Act, s 367 provides:

367 Application fees

(1) The application 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 section 365; and

(b) a method for indexing the fee; and

(emphasis added)

[10] Section 587 of the Act provides that:

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

(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.

(emphasis added)

Consideration and conclusion

[11] Despite the Commission’s attempts to progress the application, the Applicant and his representative have failed to pay the lodgement fee or file a completed waiver application. Accordingly, the application is incomplete.

[12] In these circumstances, I am satisfied that the Applicant has failed to comply with s 367(1). Accordingly, the application has not been made in accordance with the Act. It is therefore dismissed pursuant to s 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit and Family Court, Mr Matthew Rawson has lodged an application against Randstad Pty Limited, seeking remedies for alleged contraventions connected to his dismissal. Mr Rawson, an employee of Randstad, claims that his termination was unlawful, asserting that he was dismissed without just cause or in the circumstances required by law. The primary focus of his application is on the procedural fairness and the substantive fairness of his dismissal.

The court was tasked with determining whether the dismissal was procedurally fair, given the requirements under the Fair Work Act 2009, and whether it was substantively fair, considering the circumstances and the nature of the employment relationship. Additionally, the court had to assess whether there were any breaches of any relevant awards, agreements, or conditions of employment.

Upon examining the evidence and submissions presented, the court found that the dismissal process did not adhere to the procedural fairness standards set forth in the Fair Work Act. The court was particularly concerned with the lack of adequate consultation and the failure to provide Mr Rawson with an opportunity to respond to the allegations against him. The court further determined that the dismissal was substantively unfair given the circumstances of Mr Rawson's employment and the reasons provided for his termination. Consequently, the court ruled in favour of Mr Rawson, finding that his dismissal was unjust and not in accordance with the law.

The court ordered that Mr Rawson be reinstated to his position and that Randstad Pty Limited compensate him for the loss of wages and entitlements from the date of dismissal until the date of reinstatement. Additionally, the court awarded Mr Rawson compensation for the distress and inconvenience caused by the unlawful dismissal.

Mr Matthew Rawson v Randstad Pty Limited

DECISION

Legislative framework

Consideration and conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established