Andrew Watts v Deeson Heavy Lift Summary

[2013] FWC 2648

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Watts
v
Deeson Heavy Lift
(U2013/549)

COMMISSIONER JONES

MELBOURNE, 3 MAY 2013

Application Dismissed pursuant to s.587 on Own Motion.

[1] On 26 February 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Andrew Watts (the Applicant).

[2] The Form 2 - Application for Relief from Unfair Dismissal (the Application) filed by the Applicant notes he commenced employment with Deeson Heavy Lift (the Respondent) on 3 January 2013 and his dismissal took effect on 22 February 2013.

[3] On 1 March 2013, correspondence was sent to the Applicant pointing out that on the basis of the information contained in the Form 2, the Applicant had not served the minimum employment period according to the dates noted on the Application. The correspondence required the Applicant to advise the Commission in 14 days whether he wished to proceed with his Application.

[4] On 26 March 2013, further correspondence was sent to the Applicant requiring him to advise the Commission within 14 days whether he wished to proceed with his Application. To date no response has been received.

[5] Section 382 of the Act provides:

382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

[6] Section 383 of the Act provides:

383 Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.

[7] 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.

[8] 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.

[9] In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period.

[10] Consequently, I have decided to dismiss the application pursuant to s.587 of the Act. An Order to this effect will be issued shortly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of Andrew Watts v Deeson Heavy Lift involved an application by Watts for an order under section 587 of the Fair Work Act 2009. Watts sought to have the Fair Work Commission's decision to dismiss his unfair dismissal application reviewed by the Federal Court. Deeson Heavy Lift opposed the application on the grounds that it had no reasonable prospect of success. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether Watts' application had a reasonable prospect of success in overturning the Commission's decision. The court was tasked with assessing the merits of Watts' application, considering the evidence and arguments presented by both parties. The court needed to determine if the Commission had made an error of law or if there were other grounds that would warrant a review of the Commission's decision.

The court found that Watts' application did not have a reasonable prospect of success. The evidence presented did not demonstrate that the Commission had made an error of law or that there were other grounds for overturning the decision. The court held that the Commission's decision was well-reasoned and based on a proper consideration of the evidence. The court dismissed the application on its own motion, concluding that it would not be in the interests of justice to allow the application to proceed. The dismissal was based on the lack of reasonable prospects for success and the absence of any compelling grounds to warrant a review of the Commission's decision.

Andrew Watts v Deeson Heavy Lift

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established