Andrew Kowalski v M & a Charnock T/A P&A Auto Repairs

[2021] FWC 5219

[2021] FWC 5219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Kowalski
v
M & A Charnock T/A P&A Auto Repairs
(U2021/5491)

VICE PRESIDENT CATANZARITI SYDNEY, 24 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 23 June 2021, Andrew Kowalski made an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Kowalski says he was employed by ‘Mr M & Mrs A Charnock T/A P&A Auto Repairs’ from 25 November 2019 until he was dismissed on 8 June 2021.

[3] On 1 July 2021, Michael James and Anita Ida Charnock T/A MJ&AI Charnock T/A P&A Auto Repairs (P&A Auto Repairs) filed an employer’s response objecting to Mr Kowalski’s application on the basis the application was out of time and they were a small business employer and they complied with the Small Business Fair Dismissal Code. P&A Auto Repairs submitted that Mr Kowalski’s dismissal took effect on 25 May 2021.

[4] My chambers sent correspondence to Mr Kowalski on 30 July 2021 requiring him to provide a statement in support of the granting of an extension of time for the late lodgement of his application. He was asked to provide the information by no later than 5:00pm on 4 August 2021. A response was not received from Mr Kowalski.

[5] On 6 August 2021, further correspondence was sent to Mr Kowalski directing him to provide a response by 4:00pm on 10 August 2021. He was advised that in the absence of a reply his application may be dismissed.

[6] To date, Mr Kowalski 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.

(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.

[8] 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).

[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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