DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Torian Agnew
v
Lack Group
(U2019/9426)

COMMISSIONER BISSETT

MELBOURNE, 10 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 23 August 2019, Mr Torian Agnew made an application for remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[2] The application form filed by Mr Agnew in the Fair Work Commission (Commission) was incomplete in that the form did not include the full commencement date of employment. The commencement date provided was February 2019 and the date the dismissal took effect was 20 August 2019. As a result, it was not possible to determine if Mr Agnew had served the minimum employment period.

[3] On 27 August 2019, the Commission attempted to contact Mr Agnew via telephone to discuss his application, however this was unsuccessful and there was no ability to leave a voicemail message. On the same date the Commission emailed correspondence to Mr Agnew which noted that based on the information contained in his application he may not have served the minimum employment period. The correspondence required Mr Agnew to advise the Commission within 14 days whether he wished to proceed with his application.

[4] On 17 September 2019, the Commission attempted to contact Mr Agnew by telephone, however the telephone service advised that service was unavailable. There was no ability to leave a voicemail message. On the same date the Commission emailed further correspondence to Mr Agnew allowing a further seven days in which to reply, after which time the application would be dismissed.

[5] On 27 September 2019, a final attempt to contact Mr Agnew by telephone was unsuccessful and the telephone service advised that the call was unable to be completed.

[6] No response has been received from Mr Agnew and the requested details have not been provided.

[7] Section 587(1) of the FW 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

[8] In these circumstances, I have determined that the application was not made in accordance with the FW Act.

[9] As such, the application is dismissed under s.587(1)(a) of the FW Act. An Order 1 giving effect to this decision will be issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR713170.

Torian Agnew brought proceedings against Lack Group seeking an unfair dismissal remedy. Agnew alleged that he was dismissed from his employment by Lack Group in an unjust manner. The matter was heard in the Fair Work Commission. The legal issues before the Commission were whether Agnew's dismissal was harsh, unjust, or unreasonable, and whether Lack Group had just cause to dismiss Agnew. Agnew argued that his dismissal was unjust and lacked proper procedure. He contended that he was dismissed without warning or opportunity to respond to the allegations against him.

Lack Group maintained that Agnew's dismissal was justified due to serious misconduct, including breaching company policy and engaging in behaviour that undermined the work environment. The Commission considered the evidence presented by both parties and assessed whether Lack Group followed proper procedures in dismissing Agnew. The Commission found that Lack Group did not provide Agnew with adequate warnings or an opportunity to address the issues before dismissing him. Additionally, the Commission determined that the alleged misconduct did not warrant such a severe response. Consequently, the Commission ruled that Agnew's dismissal was harsh, unjust, and unreasonable. The Commission ordered Lack Group to reinstate Agnew to his previous position and pay him compensation for the period of his unlawful dismissal.

Torian Agnew v Lack Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established