Adam McLellan v CommsCentre Business Technologies / Bryclyn Pty Ltd

[2020] FWC 3600

[2020] FWC 3600

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Adam McLellan
v
CommsCentre Business Technologies / Bryclyn Pty Ltd
(U2020/5183)

VICE PRESIDENT CATANZARITI SYDNEY, 13 JULY 2020

Application for an unfair dismissal remedy.

[1] Adam McLellan (the applicant) says he was employed by ‘CommsCentre Business Technologies / Bryclyn Pty Ltd’ until he was dismissed on 27 March 2020. The applicant states that he started working there on 8 June 2019.

[2] On 19 April 2020, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). On his own account of events, the application was therefore lodged two days outside the 21-day period prescribed by s.394(2) of the Act.

[3] Brycelyn Pty Ltd T/a CommsCentre Business Technologies (the respondent) raised several jurisdictional objections to this application, including that the applicant did not complete the minimum employment period, and that his application was lodged out of time.

[4] The matter was referred to me to determine the jurisdictional objections. On 17 June 2020, my chambers sent the applicant correspondence requiring him to provide a statement, both in support of his claim that he had served the minimum employment period, and the granting of an extension of time for the late lodgement of his application. He was asked to provide this information by no later than 24 June 2020. However, no response was received.

[5] On 25 June 2020, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00 pm on 30 June 2020. He was advised that in the absence of a reply, his application may be dismissed.

[6] To date, the applicant has not responded to any of the Commission’s correspondence.

[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] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[9] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[10] An order to that effect will issue with this decision.

VICE PRESIDENT

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