Jarryd Watkins v Gold Coast City Council

[2024] FWC 2608

[2024] FWC 2608

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jarryd Watkins
v

Gold Coast City Council

(U2024/8772)

DEPUTY PRESIDENT EASTON SYDNEY, 20 SEPTEMBER 2024

Application for relief from unfair dismissal – national system employer – dismissal under s.587(1)(c) at the Commission’s initiative – application has no reasonable prospects of success.

1. On 29 July 2024 Mr Jarryd Watkins made an application to the Fair Work Commission for a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

1. For the reasons that follow I am satisfied that Mr Watkins’ application has no reasonable prospects of success and should be dismissed.

1. Mr Watkins advised in the Form F2 Unfair Dismissal Application that he commenced employment with Gold Coast City Council. On the information provided by Mr Watkins’, he worked for an employer that is not recognised as a National System Employer.

1. Division 1 of Part 3-2 of the Act is concerned with the “unfair dismissal of national system employees, and the granting of remedies for unfair dismissal”. Further, s.380 of the Act provides that, under this Part, an “employee means a national system employee, and employer means a national system employer”. Mr Watkins and the Gold Coast City Council do not respectively fall within the scope of this definition.

1. It seems likely that Mr Watkins was a direct employee of a Local Government Council. A Queensland Local Government council is not a National System Employer and Mr Watkins has not provided any information, evidence or response to the contrary.

1. Section 587(1) of the Act provides as follows:

“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.”

1. Commission staff have tried to contact Mr Watkins on the following dates:

   ·   1 August 2024 by telephone, SMS and letter; and

   ·   14 August 2024 by telephone.

1. Commission staff sought further information from Mr Watkins about whether he was employed by a National System Employer.

1. Mr Watkins has been on notice of the likely consequences of his application remaining incomplete.

1. To date Mr Watkins has not provided any further information that supports her eligibility to make the application.

1. Section 587 allows the Commission to dismiss an application on the Commission’s own initiative in the early stages – subject to affording procedural fairness. Protracted proceedings can be avoided when there is no reasonable prospect of an outcome other than the dismissal of the application. The power under s.587 should be used with caution, particularly if the matter involves complex questions of fact or law. The power under s.587 is not available if there are live facts in issue that could affect the outcome of the proceedings (see generally Bond v Carbridge Pty Ltd T/A Carbridge [2024] FWC 1302 at [11]-[16] (Bond) and the cases cited therein).

Does Mr Watkins’ application have any reasonable prospects of success?

1. The Commission cannot consider the fairness of Mr Watkins’ dismissal until it is satisfied that he is eligible to make an unfair dismissal claim.

1. The information provided by Mr Watkins on his Form F2 application strongly indicates that he is not eligible to make an unfair dismissal application. The Form F2 indicates that Mr Watkins was not employed by a National System Employer.

1. On 4 September 2024, Mr Watkins was also specifically invited to provide submissions on why his matter should not be dismissed under ss.587(1)(a) or 587(1)(c).

1. I am satisfied that Mr Watkins has had the opportunity to put his case for consideration on all matters material to the making of the decision to dismiss his application under s.587 (see Bond at [15]-[16]).

1. For these reasons I am satisfied that Mr Watkins’ claim has no reasonable prospect of success within the meaning of s.587(1)(c), and that it is appropriate in the circumstances to dismiss his application on the Commission’s own initiative by the facility available in s.587(3)(a).

1. I have separately made an order to this effect (PR779489).

DEPUTY PRESIDENT

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