Roxanne Price v CVGT Australia Summary

[2013] FWC 2616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roxanne Price
v
CVGT Australia
(U2013/5682)

COMMISSIONER JONES

MELBOURNE, 30 APRIL 2013

Application dismissed pursuant to s.587 on own motion.

[1] On 14 January 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Ms Roxanne Price (the Applicant).

[2] The matter was listed for conciliation with a Fair Work Commission (FWC) Conciliator on 11 February 2013. Conciliation could not take place as the Applicant did not attend.

[3] The file notes disclose that on 18 March 2013, in a telephone conversation with FWC the Applicant advised she wished to discontinue her application. The Applicant was informed that to formally discontinue her application she was required to complete and file a Form 50 - Notice of Discontinuance. The Applicant confirmed she would do so that same day. To date, no Notice of Discontinuance has been received from the Applicant.

[4] 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.

[5] I am satisfied that, in determining whether to dismiss a matter on its own initiative, the Commission is not limited to matters specified in s.587(1)(a) to (c). The opening words ‘Without limiting when FWC may dismiss a matter’, clearly confers a broader discretion.

[6] Section 588 of the Act provides:

588 Discontinuing applications

A person who has applied to the FWC may discontinue the application:

(a) in accordance with the procedural rules (if any); and

(b) whether or not the matter has been settled.

[7] Rule 6.2 of the Fair Work Australia Rules 2009 (the Rules) provides:

6.2 Subject to these Rules:

(a) an application to FWA must be made using the form in Schedule 2 that is specified for the purpose in Schedule 1; and

(b) notice must be given to FWA using the form in Schedule 2 that is specified for the purpose in Schedule 1.

[8] Schedule 1 of the Rules provides Form 50 for Notice of Discontinuance.

[9] Rule 4 of the Rules provides:

FWA may dispense with compliance with any of the requirements of these Rules before or after the occasion for compliance arises.

[10] In the circumstances, I am satisfied the Applicant intended to discontinue her application but has failed to file the Notice of Discontinuance in accordance with the Rules.

[11] Pursuant to Rule 4, I have decided to dispense with the requirements of the Rules.

[12] In the circumstances of this matter, I have decided to dismiss the application pursuant to s.587 on the basis the Applicant does not intend to prosecute her application. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the case of Roxanne Price versus CVGT Australia, the applicant sought relief under the Fair Work Act 2009 (Cth) against her former employer, CVGT Australia. The matter was heard in the Fair Work Commission, where the applicant alleged unfair dismissal and sought reinstatement to her previous position. The Commission was required to determine whether the dismissal was harsh, unjust, or unreasonable, as well as whether the dismissal was in accordance with the provisions of the Act.

The primary legal issue before the Commission was whether the dismissal of the applicant was justified and whether the employer followed the necessary procedural steps as outlined in the Act. Additionally, the Commission had to assess whether the employer had a valid reason for terminating the applicant's employment and whether the dismissal was a proportionate response to the circumstances. The applicant argued that the dismissal was unfair and that she was not provided with a fair opportunity to respond to the allegations against her.

The Fair Work Commission dismissed the application under section 587 on its own motion, finding that the applicant had not demonstrated that her dismissal was harsh, unjust, or unreasonable. The Commission concluded that the employer had acted within the bounds of the Act and had followed the necessary procedural steps. Furthermore, the employer had a valid reason for terminating the applicant's employment, and the dismissal was considered to be a proportionate response to the circumstances. Consequently, the applicant's claim for unfair dismissal was unsuccessful.

The Fair Work Commission ordered that the application be dismissed, and no further action be taken in relation to the matter. The Commission also noted that the applicant had the right to appeal the decision within 21 days of the issuance of the dismissal notice.

Roxanne Price v CVGT Australia

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established