Benjamin Argent v NGI Savannah Living Communities T/A Savannah Lifestyle Resorts

[2019] FWC 1944

[2019] FWC 1944

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Benjamin Argent
v
NGI Savannah Living Communities T/A Savannah Lifestyle Resorts
(U2018/11730)

DEPUTY PRESIDENT DEAN CANBERRA, 25 MARCH 2019

Application for an unfair dismissal remedy.

[1] On 14 November 2018, Mr Benjamin Argent made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Argent’s application states that he commenced employment with NGI Savannah Living Communities P/L T/A Savannah Lifestyle Resorts (the Respondent) on 18 September 2017 and that he was dismissed on 25 October 2018.

[3] On 5 December 2018, the Respondent filed an Employer Response (Form F3) objecting to the application on the ground that Mr Argent was not an employee of the Respondent. It contends that Mr Argent was employed by another entity which the Respondent engaged to provide management services.

[4] Despite the objection the Respondent agreed to attend conciliation. The matter was initially listed for conciliation on 17 December 2018. The conciliation did not proceed as Mr Argent was not contactable at the time. A further conciliation was set down for 11 February 2019. Mr Argent failed to attend at the listed time and a number of attempts made to contact him were unsuccessful.

[5] The matter was then referred to me to deal with the jurisdictional objection.

[6] On 18 February 2019 correspondence was sent to Mr Argent requiring him to provide a response within 7 days to the Respondent’s claim that he had not been employed by the Respondent. The correspondence required Mr Argent to provide the Commission with any documents that may confirm that he had been an employee of the Respondent. No response was received from Mr Argent.

[7] On 27 February 2019, correspondence was sent to Mr Argent noting his failure to file material supporting his contention. Mr Argent was advised that in the absence of any material being received from him by 4:00pm on 1 March 2019, his application may be dismissed. Mr Argent did not respond to that correspondence.

[8] Final attempts were made to contact Mr Argent by telephone on 19 March 2019.

[9] 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.

[10] 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).

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

DEPUTY PRESIDENT

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