Garry Wrench v Thiess Degrémont Joint Venture
[2012] FWA 8894
•17 OCTOBER 2012
[2012] FWA 8894 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Garry Wrench
v
Thiess Degrémont Joint Venture
(U2012/3760)
DEPUTY PRESIDENT SMITH | MELBOURNE, 17 OCTOBER 2012 |
Termination of employment - whether genuine redundancy.
INTRODUCTION
[1] On 2 October 2012 ([2012] FWA 8314) a decision was handed down dealing with an application made by Mr G. Wrench. In the conclusion I stated:
“[26] In short, I see little utility in considering an order for security of costs if, on the face of the material before me, I can conclude that there is no reasonable prospect of success and where, it appears, no additional material could be advanced in further proceedings. To permit the matter to proceed to this stage would be to incur costs for Mr Wrench notwithstanding that he feels aggrieved by the decision. However, it must be said that on the extensive material before me, it seems appropriate to conclude that there is no reasonable prospect of success for Mr Wrench. Too many factors weight against him in terms of the industrial relationships between the parties to the Agreement and the conduct of the Joint Venture.
[27] I am minded to dismiss the matter as having no reasonable prospect of success but I will, in the circumstances, provide Mr Wrench with the opportunity of address as to why such a decision should not be made. He will have until close of business 10 October to put any submissions in writing. If I consider it necessary, having read those submissions, to hear from the Joint Venture, I shall provide them with an opportunity to be heard.”
[2] In response to the decision, Mr Wrench argued that he was entitled to raise the matter with Fair Work Australia and he rejected any submission to the contrary.
[3] On the substantive matter Mr Wrench submitted:
“This given, I still submit that my selection for redundancy occurred outside the guidelines agreed, in that I was not advised of any shortcomings on my behalf within the selection criteria used for the reason of my selection for premature redundancy.
I would respectfully ask that the above submissions be considered before making a final decision in the outcome of this case.”
[4] Given the material presented by his previous employer in the proceedings, this submission appears to simply be a disagreement with the decision without providing sufficient material which could lead to the conclusion that the application was not one to which s.587(1)(c) of the Fair Work Act 2009 (the Act) may apply.
[5] The matter will be dismissed on the basis that it has no reasonable prospect of success. I do so for two reasons. Firstly, it is clear on the material that a very strong jurisdictional ground exists pursuant to s.385(d) of the Act. It is unlikely that any further proceeding could find that jurisdiction exists to hear the matter. The second reason is allied to the first and that is the merit of the matter. It appears to me that Degrémont took all reasonable steps in concert with the relevant union to properly consider the selection of Mr Wrench for redundancy. In short, even if his termination was not technically on the grounds of genuine redundancy as defined by the Act, his selection was properly reviewed and a redundancy was necessary.
[6] I dismiss the application and my order is attached.
DEPUTY PRESIDENT
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