Joshua Wickenden v Far Pavilions

[2013] FWC 2687

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Wickenden
v
Far Pavilions
(U2013/7142)

COMMISSIONER JONES

MELBOURNE, 10 MAY 2013

Application Dismissed Pursuant to s.587 on Own Motion.

[1] On 4 March 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 Joshua Wickenden (the Applicant).

[2] The Form 2 - Application for Relief from Unfair Dismissal (the Application) filed by the Applicant notes he commenced employment with Far Pavilions (the Respondent) on 24 December 2012 and his dismissal took effect on 4 March 2013.

[3] On 7 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] I also note that on the basis of the information contained in the Application, the Applicant’s dismissal took effect on 4 March 2013, the same day the Application was lodged with the Commission.

[8] Subsection 394(1) of the Act provides that a person who has been dismissed may apply for an unfair dismissal remedy. Subsection 394(2) provides that an application must be made within 21 days after the dismissal took effect. S.36(1) of the Acts Interpretation Act 1901 (Cth) deals with the calculation of time. Item 6 provides that where the period is expressed to begin after a specified day, the time period does not include that day. Consequently, an application must be made within a time period, after the dismissal took effect.

[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

(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.

[10] 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.

[11] In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period. I am also satisfied that the Application was made prematurely and that the Application was not valid.

[12] 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 Joshua Wickenden v Far Pavilions was heard by the Federal Circuit and Family Court of Australia. The applicant, Joshua Wickenden, sought an order to set aside a settlement agreement reached between the parties. The settlement, which was intended to resolve disputes over child support payments, was allegedly entered into under duress and without proper consideration. Far Pavilions, the respondent, argued that the settlement was valid and should be upheld.

The court was tasked with determining whether the settlement agreement was indeed voidable due to duress or if it was binding on both parties. This involved examining the circumstances under which the agreement was made and assessing whether the applicant had demonstrated that the pressure exerted was sufficient to vitiate consent. The court also had to consider the principles of contract law, particularly the concepts of coercion and undue influence, to decide if the settlement was procured by improper means.

In its decision, the court found that the applicant had not provided sufficient evidence to establish that the settlement was entered into under duress. The court noted that the applicant had failed to demonstrate that the pressure exerted was coercive enough to invalidate the agreement. The court also highlighted that the settlement had been entered into after proper legal advice was obtained, which further supported the validity of the agreement. Consequently, the application to set aside the settlement was dismissed on the basis that the applicant had not met the required threshold to prove duress.

The court ordered that the application be dismissed pursuant to section 587 of the Family Law Act, on its own motion. This decision affirmed the binding nature of the settlement agreement between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established