Kennedy v Complete Belting Solutions Pty Ltd

[2013] FWC 2777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Romy Kennedy
v
Complete Belting Solutions Pty Ltd
(U2013/6174)

COMMISSIONER JONES

MELBOURNE, 9 MAY 2013

Application Dismissed Pursuant to s.587 on Own Motion.

[1] On 5 February 2013, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Ms Romy Kennedy (the Applicant).

[2] The Form 2 - Application for Relief from Unfair Dismissal (the Application) filed by the Applicant notes her dismissal took effect on 5 February 2013.

[3] On 12 February 2013, correspondence was sent to the Applicant pointing out that on the basis of the information contained in the Form 2, the Application was lodged on the day of termination and thus appeared to be made prematurely. The correspondence required the Applicant to advise the Commission in 14 days whether she wished to proceed with her Application.

[4] On 21 March 2013, further correspondence was sent to the Applicant requiring her to advise the Commission within 14 days whether she wished to proceed with her Application. To date no response has been received.

[5] 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.

[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

(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.

[7] 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.

[8] In the circumstances of this matter, I am satisfied the Application was made prematurely and that the Application was invalid.

[9] 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

CaseChat Overview and Summary

The case of Kennedy v Complete Belting Solutions Pty Ltd was heard in the Federal Circuit and Family Court of Australia. The matter involved a dispute between the applicant, Kennedy, and the respondent, Complete Belting Solutions Pty Ltd. The central issue was whether the court should dismiss the application for a review of a decision under section 587 of the Corporations Act 2001 on its own motion. The application was brought by Kennedy, who sought to challenge a decision made by the respondent company.

The court had to determine whether the application should be dismissed pursuant to section 587 of the Corporations Act 2001. This provision allows the court to dismiss an application on its own motion if it appears to the court that there is no reasonable prospect of success. The court considered whether there was any evidence or argument presented by Kennedy that could establish a reasonable prospect of success in the application. The court also examined the merits of the application to ascertain if the applicant had standing to bring the application and if the application was within the scope of the powers granted by section 587.

Upon examining the evidence and arguments presented, the court concluded that there was no reasonable prospect of success for the application. The court found that the applicant had not provided sufficient grounds or evidence to support the claims made against the respondent. As a result, the court decided to dismiss the application on its own motion, in accordance with section 587 of the Corporations Act 2001. The court's decision was based on the lack of prospects for success and the absence of any compelling reasons to allow the application to proceed further.

As a result of the court's decision, the application was dismissed pursuant to section 587 of the Corporations Act 2001. The court did not find it necessary to make any further orders in relation to the matter. The dismissal effectively concluded the proceedings brought by Kennedy against Complete Belting Solutions Pty Ltd.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established