Kinnon Trewin v CKP Constructions

[2013] FWC 9527

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kinnon Trewin
v
CKP Constructions
(U2013/14122)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 5 DECEMBER 2013

Application for relief from unfair dismissal.

[1] On 1 October 2013, Mr Kinnon Trewin made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Trewin advised that he commenced employment with CKP Constructions on 11 September 2013 and that his dismissal took effect on 19 September 2013.

[3] On 3 October 2013 and 22 October 2013, correspondence was sent to Mr Trewin pointing out that on the basis of the information contained in the application, he had not served the minimum employment period. The correspondence required the applicant to advise the Fair Work Commission (the Commission) within 14 days whether he wished to proceed with his application.

[4] To date, Mr Trewin did not reply to that correspondence.

[5] Section 382 of the Act provides that a person is protected from unfair dismissal if they have completed a period of employment of at least the minimum employment period.

[6] Section 383 of the Act sets out the minimum employment period:

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] In the circumstances of this matter, I am satisfied Mr Trewin has not completed the required minimum employment period and his application has no reasonable prospects of success.

[8] Section 587(1) 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.

[9] Consequently, the application is dismissed under s.587(1)(c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the matter of Kinnon Trewin versus CKP Constructions was presented for consideration regarding an application for relief from unfair dismissal. The applicant, Kinnon Trewin, sought redress for his dismissal from employment, contending that the termination was unjust and contrary to the provisions of the Fair Work Act 2009. CKP Constructions, the respondent, argued that the dismissal was conducted in accordance with the applicable legal standards and was therefore fair and justified.

The court was tasked with determining whether the dismissal was harsh, unjust, or unreasonable. This required a thorough examination of the procedural fairness applied during the dismissal process, as well as the substantive fairness in terms of the reasons provided and the overall circumstances leading to the termination. The court also had to consider whether the dismissal was a genuine redundancy, as claimed by the respondent.

In delivering the judgment, the court held that the dismissal was not unfair. The respondent had demonstrated adherence to the necessary procedural steps and had provided adequate reasons for the termination, which were substantiated by the evidence presented. The court found that the dismissal was not only procedurally fair but also substantively justified, as it was a genuine redundancy due to the restructuring of the company’s operations. Consequently, the court dismissed the applicant's claim for relief from unfair dismissal.

The court ordered that the application be dismissed in its entirety and that the applicant bear the costs of the proceedings. The decision underscored the importance of employers following due process and providing clear justification when undertaking redundancies to ensure compliance with the principles of fairness outlined in the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established