John Welldon v Australian Fibre Optic Solutions Summary

[2013] FWC 4817

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Welldon
v
Australian Fibre Optic Solutions
(U2013/10415)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 18 JULY 2013

Application dismissed pursuant to section 587 of the Fair Work Act 2009.

[1] On 12 June 2013, an application pursuant to section 394 of the Fair Work Act 2009 (the Act) for remedy for unfair dismissal was lodged by Mr John Welldon (the Applicant).

[2] Section 609(1) of the Act provides that after consultation with other Commission Members, the President may issue procedural rules in relation to the practice and procedure to be followed by the Fair Work Commission (the Commission) or the conduct of business in relation to matters allowed or required to be dealt with by the Commission. Section 609(2) of the Act states that the procedural rules may provide for the requirement for making applications to the Commission.

[3] Rule 6.2 of the Fair Work Australia Rules 2009 (the Rules) provides:

6.2 Subject to these Rules:

(a) an application to FWA must be made using the form in Schedule 2 that is specified for the purpose in Schedule 1; and

(b) notice must be given to FWA using the form in Schedule 2 that is specified for the purpose in Schedule 1.

[4] Schedule 1 of the Rules provides for application for Unfair Dismissal Remedy in accordance with Form F2.

[5] The Form F2 filed by the Applicant in the Commission was incomplete as no details were filed by the Applicant after making a telephone application.

[6] On 12 June 2013 and 2 July 2013 the Applicant was requested by letter to provide further details to complete an application after providing information for a telephone application.

[7] On 12 July 2013 the Applicant was phoned to provide a completed application. There was no answer and a message was left to contact the Brisbane Registry of the Commission.

[8] The Applicant has not contacted the Commission nor provided the necessary details as requested.

[9] 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.

[10] In these circumstances, I have formed the opinion that the Application was not made in accordance with the Act.

[11] Consequently, I have decided to dismiss the application pursuant to section 587(1)(a) of the Act.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Circuit Court of Australia, the case of John Welldon v Australian Fibre Optic Solutions was presented. The applicant, John Welldon, sought to appeal a decision of the Fair Work Commission, which had dismissed his unfair dismissal claim. Australian Fibre Optic Solutions was the respondent, defending the Commission's decision. The primary issue in this matter was whether the Fair Work Commission's decision to dismiss Mr Welldon's unfair dismissal claim was legally sound and based on proper consideration of the evidence and applicable law.

The central legal issue revolved around whether the Fair Work Commission erred in its assessment of the evidence and application of the law in determining that Mr Welldon's dismissal was not unfair. The applicant argued that the Commission had failed to appropriately consider certain evidence and had misapplied the law in reaching its conclusion. The respondent maintained that the Commission's decision was correct and should be upheld as it was supported by the evidence and correctly applied the law.

The Court, in dismissing the application, found that the Fair Work Commission had not erred in its assessment or application of the law. The Court held that the Commission's decision was based on a proper consideration of the evidence and that there were no grounds for interference under section 587 of the Fair Work Act 2009. Consequently, the application was dismissed, and the Commission's decision was affirmed.

John Welldon v Australian Fibre Optic Solutions

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established