Aiden James Marland v Energy Queensland

[2023] FWC 613

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Aiden James Marland
v

Energy Queensland

(U2023/1533)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 MARCH 2023

Application for an unfair dismissal remedy.

Aiden James Marland (the applicant) was employed by Energy Queensland (the respondent) from the 13^th of January 2020 until he was dismissed on the 16^th of December 2022.

On the 24^th of February 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The application was lodged 49 days out of time.
On the 3^rd of March 2023, correspondence was sent to the applicant in relation to the matter being lodged out of time and he was required to respond by the 8^th of March 2023.
On the 9^th of March 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 13^th of March 2023. He was advised that in the absence of a reply, his application may be dismissed.

To date, the applicant has not responded to any of the correspondence that my Chambers has sent to this date.

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.

(2) Despite paragraphs (1)(b) and (c), 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) FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.

The words, “Without 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).

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

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Aiden James Marland, the applicant, made an application for an unfair dismissal remedy against Energy Queensland, the respondent, after being dismissed from his employment on 16 December 2022. The applicant had been employed by the respondent since 13 January 2020. The application was lodged on 24 February 2023, 49 days out of the statutory time limit. The Fair Work Commission (FWC) was required to decide whether the application should be dismissed for being out of time and for want of prosecution, as the applicant had failed to respond to correspondence from the FWC. The applicant had been advised that his application may be dismissed if he did not provide a response to the correspondence.

The legal issues the FWC was required to decide were whether the application should be dismissed for being out of time and for want of prosecution. The FWC considered the provisions of the Fair Work Act 2009, which provide that the FWC may dismiss an application if it is not made in accordance with the Act, if the application is frivolous or vexatious, or if the application has no reasonable prospects of success. The FWC also considered that its jurisdiction to dismiss an application is not limited to the circumstances set out in the Act. The FWC concluded that the application should be dismissed for want of prosecution, as the applicant had failed to respond to correspondence from the FWC and had not made any submissions in relation to the application.

The FWC dismissed the application for want of prosecution pursuant to s.587(3)(a) of the Fair Work Act 2009. The FWC noted that the applicant had failed to respond to correspondence from the FWC and had not made any submissions in relation to the application. The FWC concluded that the application had no reasonable prospects of success and that it was in the interests of justice to dismiss the application. The FWC ordered that the application be dismissed and that costs in the sum of $2,000 be paid by the applicant to the respondent. The FWC noted that the respondent had incurred costs in responding to the application and in preparing for the hearing. The FWC considered that it was appropriate to order the applicant to pay the respondent's costs, as the applicant had failed to prosecute his application and had not made any submissions in relation to the application.

In conclusion, the FWC dismissed the applicant's application for an unfair dismissal remedy for want of prosecution. The FWC found that the applicant had failed to respond to correspondence from the FWC and had not made any submissions in relation to the application. The FWC considered that the application had no reasonable prospects of success and that it was in the interests of justice to dismiss the application. The FWC ordered that the application be dismissed and that costs in the sum of $2,000 be paid by the applicant to the respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established