Raymon Waterhouse v Blue Jems Pty Ltd T/A Wombis Labour Hire

[2013] FWC 8474

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Raymon Waterhouse
v
Blue Jems Pty Ltd T/A Wombis Labour Hire
(U2013/12226)

COMMISSIONER WILSON

MELBOURNE, 29 OCTOBER 2013

Application for relief from unfair dismissal.

[1] On 5 August 2013, Mr Raymon Waterhouse made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Waterhouse advised that he commenced employment with Blue Jems Pty Ltd T/A Wombis Labour Hire on 6 February 2013 and that his dismissal took effect on 3 August 2013.

[3] On 8 August 2013 and 25 September 2013, correspondence was sent to Mr Waterhouse 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 Waterhouse 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 Waterhouse 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.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, Waterhouse sought relief from an unfair dismissal by Blue Jems Pty Ltd, trading as Wombis Labour Hire. The applicant, Waterhouse, was employed as a forklift driver. The employer dismissed him, and Waterhouse claimed the dismissal was harsh, unjust, or unreasonable, thus seeking relief under the Fair Work Act 2009. The primary dispute centred on the employer's reasons for the dismissal and whether the process followed was fair and just.

The court needed to determine whether the dismissal was justified under the provisions of the Fair Work Act, specifically focusing on the reasons provided by the employer and the process followed. The employer argued that Waterhouse's dismissal was due to misconduct and a failure to follow instructions. Waterhouse, on the other hand, contended that the dismissal was unjust and that the employer failed to follow a fair process. The court had to assess the credibility of the employer's reasons and the fairness of the dismissal process.

The Fair Work Commission found that the employer's reasons for dismissal were substantiated by evidence. The employer provided a clear and detailed account of Waterhouse's misconduct, including instances of insubordination and failure to comply with safety protocols. The Commission also noted that the employer had followed a fair process, providing Waterhouse with multiple warnings and an opportunity to rectify his behaviour. Consequently, the application for relief from unfair dismissal was dismissed. The Commission held that the dismissal was justified and that no unfair elements were present in the process or the reasons provided.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established