Alexander Coulthard v Downer EDI Mining

[2019] FWC 8202

[2019] FWC 8202

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Alexander Coulthard
v
Downer EDI Mining
(U2019/9669)

VICE PRESIDENT CATANZARITI SYDNEY, 3 DECEMBER 2019

Application for an unfair dismissal remedy.

[1] On 29 August 2019, the Fair Work Commission (the Commission) received an application from Alexander Coulthard for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with ‘Downer EDI Mining’.

[2] On 16 September 2019, Downer EDI Mining Pty Ltd (the Respondent) filed an Employer’s Response (Form F3), raising a jurisdictional objection on the basis that Mr Coulthard’s application was lodged out of time. The parties agree that Mr Coulthard’s employment ended on 7 August 2019. However, Mr Coulthard says he was dismissed with effect from that date, and the Respondent says Mr Coulthard voluntarily resigned his employment on that date.

[3] On 18 November 2019, my chambers sent Mr Coulthard correspondence about the extension of time issue. I directed him to provide a statement by 4:00 pm on 25 November 2019 in support of obtaining an extension of time in which to validly lodge his application. However, no response was received.

[4] On 26 November 2019, my chambers sent further correspondence to Mr Coulthard, directing him to respond by 4:00 pm on 29 November 2019, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Coulthard has not responded to any of the Commission’s correspondence.

[6] 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.”

[7] 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).

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

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

VICE PRESIDENT

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