Mr Craig Wachter v Truscaff Commercial Scaffolding

[2014] FWC 3745

[2014] FWC 3745

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Application for unfair dismissal remedy

Mr Craig Wachter
v
Truscaff Commercial Scaffolding
(U2013/17197)

DEPUTY PRESIDENT SMITH MELBOURNE, 6 JUNE 2014

Application for relief from unfair dismissal; genuine redundancy and obligation to consult; application dismissed on the basis of no reasonable prospect of success.

Introduction.

[1] Mr Craig Wachter contests his termination of employment by Truscaff Commercial Scaffolding (Truscaff). Mr Wachter lodged his application under the Fair Work Act 2009 (the Act). Truscaff argue that the termination of employment was as a result of a genuine redundancy and therefore the Commission lacks the jurisdiction to deal with the matter.

[2] As a result of an error by Mr Truden, the Director of Truscaff, he did not appear at the scheduled time of the hearing but arrived some 30 minutes late. The matter was reconvened in the absence of Mr Wachter and Truscaff put its submissions.

The Legislative Framework.

[3] An application for alleged unfair dismissal is made under section 394 of the Act. Section 396 of the Act provides that certain matters must be considered before dealing with the merits:

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

[4] This section is to be read in conjunction with s.389 and the definition of genuine redundancy which is s.394 of the Act.

389 Meaning of genuine redundancy

(1) A person’s dismissal was a case of genuine redundancy if:

(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer’s enterprise; or

(b) the enterprise of an associated entity of the employer.

[5] It appears that Truscaff is bound by the terms of the Building and Construction General On-site Award 2010 (the Award) [MA000020] but there was no evidence that consultation occurred in accordance with clause 8 of that award.

[6] It follows, that in terms of the statutory requirement, there was not a case of genuine redundancy which gave rise to the dismissal of Mr Wachter as consultation did not occur. However, it is clear that Truscaff is no longer trading and it only has one employee—Mr Truden. Mr Truden also submitted that the company has considerable debts and income which has not been recovered.

[7] Because the parties were not present at the same time, a letter was sent on the same day as the hearing to Mr Wachter advising him of the submission that the company had ceased trading. The letter stated: “However, as I mentioned to you, unless you can provide me with some evidence that your previous employer is trading then there is little prospect of you succedding.” Mr Wachter did not respond with evidence about whether or not Truscaff was trading, rather simply asked to have the matter proceed by letter dated 5 June 2014.

[8] Section 587 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.

Conclusion.

[9] Given the circumstances of this case when a company has ceased trading and has considerable financial difficulties I find that the application has no reasonable prospect of success.

[10] I dismiss the application.

DEPUTY PRESIDENT

Appearances:

C. Wachter the Applicant.

S. Truden with L. Strong on behalf of Truscaff Commercial Scaffolding.

Hearing details:

2014.

Melbourne:

May, 7.

Final written submissions:

S. Trudan, Truscaff Commercial Scaffolding, 19 May 2014.

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