DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dwayne Watkins
v
Versace Timbers
(U2019/11960)

VICE PRESIDENT CATANZARITI

DARWIN, 16 DECEMBER 2019

Application for an unfair dismissal remedy.

[1] Dwayne Watkins states he was employed by ‘Versace Timbers’ from 1 May 2019 until his dismissal took effect on 9 October 2019. On 25 October 2019, he applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 21 November 2019, Versace Timbers Pty Ltd (the Respondent) filed an Employer’s Response (Form F3), objecting to Mr Watkins’ application on the basis that he had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The Respondent agreed that Mr Watkins’ dismissal took effect on 9 October 2019, but stated that he only started working for it on 9 May 2019.

[3] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr Watkins on 29 November 2019, requiring him to provide a statement to support his claim that he had completed the minimum employment period. He was asked to provide this information by 4:00 pm on 6 December 2019. However, we received no response from Mr Watkins by that time.

[4] On 9 December 2019, my chambers sent further correspondence to Mr Watkins, directing him to provide a response by 4:00 pm on 12 December 2019. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, Mr Watkins has not responded to any of the Commission’s correspondence.

[6] 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

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.”

[7] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[8] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[9] An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Dwayne Watkins brought an application for unfair dismissal remedy against Versace Timbers. The primary issue in the case was whether the dismissal of Mr. Watkins was harsh, unjust, or unreasonable under the Fair Work Act 2009. Mr. Watkins alleged that he was unfairly dismissed due to his involvement in a workplace incident and subsequent disciplinary action. Versace Timbers maintained that the dismissal was justified as Mr. Watkins had breached company policy and acted in a manner inconsistent with his employment.

The court examined the circumstances leading to the dismissal and the employer's adherence to its own policies. It assessed the proportionality of the disciplinary action and the fairness of the process followed. The court also considered the nature of the employment and whether the dismissal met the threshold for being deemed harsh, unjust, or unreasonable. In reviewing the evidence and arguments presented by both parties, the court focused on the balance of probabilities and whether the employer's decision to dismiss Mr. Watkins was within a range of reasonable responses.

Upon careful consideration of the evidence and arguments, the court determined that the dismissal was not unfair. The employer had followed its own procedures, and the decision to terminate Mr. Watkins' employment was proportionate to the nature of his misconduct. The court found that the employer had acted reasonably and that the dismissal did not meet the criteria for being deemed harsh, unjust, or unreasonable. Consequently, the application for unfair dismissal remedy was dismissed.

The court ordered that Versace Timbers pay Mr. Watkins' legal costs associated with the application.

Dwayne Watkins v Versace Timbers

DECISION

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