Alexanda Rogerson v Laneway Enterprises T/A Norsk Dor

[2018] FWC 412

[2018] FWC 412

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexanda Rogerson
v
Laneway Enterprises T/A Norsk Dor
(U2017/12496)

DEPUTY PRESIDENT DEAN SYDNEY, 24 JANUARY 2018

Application for an unfair dismissal remedy – dismissed for want of prosecution

[1] On 23 November 2017, Mr Alexanda Rogerson made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Rogerson’s application states that he commenced employment with Laneway Enterprises T/A Norsk Dor (the Respondent) on 21 June 2016 and that his dismissal took effect on 28 October 2017.

[3] The application appeared to have been filed 5 days outside the 21 day period prescribed by s.394(2) of the Act.

[4] On 6 December 2017, the Respondent wrote to the Commission and advised that it would not be participating in a conciliation conference. The Respondent also noted that application had been lodged out of time.

[5] The matter was allocated to me to determine whether an extension of time should be granted.

[6] On 14 December 2017, the Commission wrote to Mr Rogerson asking for a written explanation as to the late filing of his application. He was asked to provide this statement no later than 4 pm on 21 December 2017. No response was received.

[7] On 22 December 2017, the Commission again wrote to Mr Rogerson:

“Dear Mr Rogerson,

Please note the correspondence sent below on 14 December 2017.

You are directed to respond by 4pm Wednesday 27 December 2017, otherwise your application may be dismissed.”

[8] No response was again received. The Commission attempted to contact Mr Rogerson by telephone on 5 and 11 January 2018. These attempts were unsuccessful and voice mail messages were left.

[9] To date, Mr Rogerson has not replied to any of the Commission’s correspondence, nor returned any of the telephone calls.

[10] 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.

(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.

[11] 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).

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

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

DEPUTY PRESIDENT

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