Murtaza Hassan v It Matters Summary

[2013] FWC 2778

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Murtaza Hassan
v
IT Matters
(U2013/283)

COMMISSIONER JONES

MELBOURNE, 8 MAY 2013

Application Dismissed Pursuant to s.587 on Own Motion.

[1] On 2 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 Mr Murtaza Hassan (the Applicant).

[2] The Form 2 - Application for Relief from Unfair Dismissal (the Application) filed by the Applicant notes he commenced employment with IT Matters (the Respondent) on 21 January 2013 and his dismissal took effect on 21 January 2013.

[3] On 6 February 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 21 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] 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.

[8] 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.

[9] In the circumstances of this matter, I am satisfied the Applicant has not completed the required minimum employment period.

[10] 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 Murtaza Hassan v It Matters was heard in the Federal Circuit and Family Court of Australia. The applicant, Murtaza Hassan, sought an injunction and damages against the respondent, It Matters, for alleged defamation and misleading or deceptive conduct under Australian consumer law. The respondent, It Matters, opposed the application on the grounds that it was frivolous or vexatious and sought costs under section 587 of the Family Law Act 1975.

The legal issues before the court included whether the application was frivolous or vexatious, and whether the respondent was entitled to costs under section 587. The court considered whether the applicant had a real prospect of success on the merits of the case, and if not, whether the application was frivolous or vexatious. The court also considered the conduct of the applicant in bringing the proceeding, including whether the application was brought in bad faith or for an improper purpose.

The court found that the applicant's claims were speculative and lacked evidence, and that the application was therefore frivolous or vexatious. The court noted that the applicant had made a number of allegations without providing any supporting evidence, and that the claims were unlikely to succeed. The court also found that the applicant's conduct in bringing the proceeding was vexatious, and that it was appropriate to award costs to the respondent under section 587. The court dismissed the application on its own motion and ordered the applicant to pay the respondent's costs of the proceeding.

Murtaza Hassan v It Matters

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established