Anderson Dauber v Newzone Holdings Pty Ltd

[2022] FWC 1279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Anderson Dauber
v

Newzone Holdings Pty Ltd

(U2022/716)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 MAY 2022

Application for an unfair dismissal remedy.

Anderson Dauber was employed by Newzone Holdings Pty Ltd from the 1^st of July 2015 until they were dismissed on the 16^th of December 2021.

On the 12^th of January 2022, 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 6 days out of time.
On the 4^th of March 2022, correspondence was sent to the applicant in relation to the matter being lodged out of time and the applicant was required to respond by the 9^th of March 2022.
On the 20^th of May 2022, further correspondence was sent to the applicant directing them to provide a response by 5:00pm on the 23^rd of May 2022. They were advised that in the absence of a reply their application may be dismissed.

To date, Anderson Dauber 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

Anderson Dauber, the applicant, lodged an application for unfair dismissal against Newzone Holdings Pty Ltd, the respondent, under section 394 of the Fair Work Act 2009. The application was filed six days beyond the permitted timeframe, and despite subsequent correspondence from the Commission, Dauber failed to respond. The case was brought before the Fair Work Commission, presided over by Vice President Catanzariti, to address the dismissal of Dauber from his employment with Newzone Holdings Pty Ltd, which had been effective since 16 December 2021.

The primary legal issue before the court was whether the Commission had the authority to dismiss Dauber's application for unfair dismissal due to his failure to respond to correspondence and the late lodging of the application. The court had to consider whether the provisions of section 587 of the Fair Work Act 2009 allowed for the dismissal of the application for want of prosecution. The court also needed to determine if the dismissal was appropriate given that the application was not made within the requisite time frame and whether the late filing and non-response to correspondence from the Commission warranted the dismissal.

The court examined the provisions of section 587 of the Fair Work Act 2009, which provides circumstances under which the Commission may dismiss an application. It was noted that the opening words of section 587(1) indicated that the Commission's jurisdiction to dismiss an application is not restricted to the scenarios outlined in subsections (1)(a), (b) and (c). The court concluded that the Commission had the authority to dismiss the application for want of prosecution under section 587(3)(a) due to Dauber's failure to respond to correspondence and the late filing of the application. The court held that the application was not made in accordance with the Act and had no reasonable prospects of success, leading to the decision to dismiss the application.

The court issued an order dismissing Dauber's application for unfair dismissal for want of prosecution. This decision underscores the importance of timely and responsive engagement with the Commission in employment-related matters governed by the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established