Appeal victory: unfair dismissal claim steams aheads

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Appeal victory: unfair dismissal claim steams aheads

After an unfair dismissal claim was rejected as having no prospect of success, an employee has successfully appealed to have the matter heard.

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After an unfair dismissal claim was rejected as having no prospect of success, an employee has successfully appealed to have the matter heard.

Facts of case


Loi Toma lodged a claim of unfair dismissal with the Fair Work Commission. He claimed he had been dismissed but his employer claimed that resigned voluntarily in a text message. The FWC dismissed the claim on the basis that it “had no proper evidentiary basis”, “no reasonable prospects of success”, and was “an abuse of process” made “in pursuit of collateral purposes”.

Mr Toma sought leave to appeal against rejection of his claim. 

In issue


A FWC full bench had to decide whether it was in the public interest to grant leave to appeal. Relevant factors to consider included whether a matter of general importance or application might arise, whether injustice to a party could occur if permission was disallowed, and whether disallowance might be inconsistent with past decisions involving similar issues. 

The arguments


The employer argued that there was no factual dispute about the end of Mr Toma’s employment – that he had clearly resigned, he had indicated he was going to another job, and that it had done nothing to force him to resign. 

Mr Toma argued that he was denied an opportunity to present his case. The FWC relied on Mr Toma’s text message to his employer and other documents filed with it, but, in this case, there was a live factual issue involved – that is, whether Mr Toma was dismissed or had resigned. That issue required consideration of the evidence, as a “forced” resignation could be found to be a dismissal. Even in the absence of employer conduct as a factor, “heat of the moment” resignations could also be found to be not genuine resignations. 

Decision


The FWC erred in ruling that Mr Toma’s claim lacked evidential basis and had no reasonable prospects of success, because it involved a live issue that needed to be considered first.

The full bench upheld the appeal and referred the claim for rehearing.

The bottom line: It appears that cases where there is a dispute over whether an employee was dismissed, was forced to resign or voluntarily resigned will at least proceed to mediation or hearing. This is because there will usually be sufficient doubt about the actual circumstances to warrant consideration of the evidence of each party.

Read the judgment


Toma v Workplace Variable Pty Ltd t/a Workplace International [2018] FWCFB 5811, 27 September 2018 
 
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