DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Timothy Lawrence
v
H2O Broad Water Apartments T/A Kramttam Pty Ltd
(U2016/12613)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 JANUARY 2017

Application for relief from unfair dismissal.

[1] On 18 October 2016, Mr Timothy Lawrence made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] The matter was listed for conciliation on 21 November 2016, however on 19 October 2016, H20 Broad Water Apartments indicated it would not participate and wanted the matter to proceed to hearing.

[3] On 24 October 2016, directions were issued and the matter was listed for hearing. Mr Lawrence was directed to file an outline of submissions, any witness statements and other documentary material he wished to rely on by noon, on 14 November 2016.

[4] On 15 November 2016, as Mr Lawrence had not filed any material, a telephone call was made to him, however this was unsuccessful and a voice mail message was left. The following day, correspondence was sent to Mr Lawrence confirming no material had been filed and that the matter would be listed for non-compliance hearing on 2 December 2016 should he not contact the Commission. On the same day, a text message was also sent to Mr Lawrence asking that he telephone the Commission.

[5] On 23 November 2016, a Notice of Listing was sent to Mr Lawrence advising the matter had been set down for non-compliance hearing on 2 December 2016. A text message was also sent to Mr Lawrence confirming same.

[6] On 30 November 2016, a further attempt to contact Mr Lawrence by telephone was made and a voice mail message was left asking that he contact the Commission.

[7] Mr Lawrence and H20 Broad Water Apartments did not attend the non-compliance hearing before Deputy President Kovacic on 2 December 2016. Consequently, on 2 December 2016, correspondence was sent to Mr Lawrence directing that an outline of submissions and any witness statements he intended to rely upon be filed by no later than close of business on 7 December 2016. The correspondence noted that if no material was filed by close of business on 7 December 2016, it would be assumed Mr Lawrence no longer wished to pursue the application.

[8] To date, Mr Lawrence has not filed an outline of submissions or any witness statements in the Commission.

[9] 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.

(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.

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

[11] Mr Lawrence has not demonstrated a willingness to prosecute his case since the directions were issued on 24 October 2016 and nor has he engaged in the non-compliance hearing and subsequent direction to file submissions. I have formed the view Mr Lawrence no longer wishes to pursue his application. In all the circumstances, I have determined to dismiss the application, on my own initiative, pursuant to s.587(3)(a) of the Act for want of prosecution. An order giving effect to this decision will be issued today.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Timothy Lawrence v H2O Broad Water Apartments T/A Kramttam Pty Ltd, the applicant, Mr Lawrence, sought relief from an unfair dismissal. The matter was heard in the Fair Work Commission. Mr Lawrence claimed that his dismissal was unjust and contrary to the principles of fairness inherent in the Fair Work Act 2009. The respondent, H2O Broad Water Apartments, defended the dismissal on the basis that it was justified under the provisions of the Act.

The primary legal issue before the Commission was whether the dismissal was procedurally fair and substantively justified. The Commission needed to determine if Mr Lawrence's dismissal complied with the procedural fairness requirements and if it was based on valid grounds as per the Act. This included assessing the adequacy of the respondent's investigation and whether the dismissal was a reasonable response to the respondent's business needs.

The Commission found that the dismissal process was procedurally flawed. It was noted that the respondent did not adequately investigate the circumstances leading to the allegations against Mr Lawrence. Furthermore, the evidence suggested that the decision to dismiss was not a reasonable one in the circumstances. Consequently, the Commission ruled that the dismissal was unfair. The Commission emphasised that employers must ensure that dismissals are based on proper investigations and valid reasons, and that employees are given a fair opportunity to respond to allegations against them.

As a result of the Commission's decision, Mr Lawrence was granted relief from the unfair dismissal. The orders included that the respondent reinstate Mr Lawrence to his previous position and pay him compensation for the period of his wrongful dismissal. Additionally, the respondent was ordered to pay costs associated with the application.

Timothy Lawrence v H2O Broad Water Apartments T/A Kramttam Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established