Benjamin James Burdett v ICE Vacations Asia Pacific Pty Ltd T/A ICE Vacations Summary

[2023] FWC 210

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Benjamin James Burdett
v

ICE Vacations Asia Pacific Pty Ltd T/A ICE Vacations

(U2022/12005)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 JANUARY 2023

Application for an unfair dismissal remedy.

Benjamin James Burdett (the applicant) was employed by ICE Vacations Asia Pacific Pty Ltd (the respondent) from the 11^th of February 2022 until he was dismissed on the 25^th of November 2022.

On the 19^th of December 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 3 days out of time.
On the 12^th of January 2023, correspondence was sent to the applicant in relation to the matter being lodged out of time and he was required to respond by the 17^th of January 2023.
On the 18^th of January 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 20^th of January 2023. He was advised that in the absence of a reply, his application may be dismissed.

To date, the applicant 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

Benjamin James Burdett brought an application for unfair dismissal against ICE Vacations Asia Pacific Pty Ltd T/A ICE Vacations, which was dismissed by him on 25 November 2022. The applicant filed an application for a remedy under section 394 of the Fair Work Act 2009, three days past the due date. The applicant was given multiple opportunities to respond to correspondence from the Commission regarding the late filing, but failed to respond. The Vice President of the Fair Work Commission was required to determine whether the application should be dismissed due to lack of prosecution.

The legal issue before the Commission was whether the application for unfair dismissal could be dismissed for lack of prosecution under section 587 of the Fair Work Act 2009. The applicant argued that he had a valid reason for not responding to correspondence from the Commission, however, this was not substantiated. The respondent argued that the application should be dismissed for lack of prosecution as the applicant failed to respond to multiple correspondences and did not provide a valid reason for his failure to do so. The Vice President found that the application was filed out of time and that the applicant failed to respond to multiple correspondences regarding the matter.

The Vice President found that section 587(1) of the Fair Work Act 2009 established 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). The Vice President found that the applicant had failed to respond to multiple correspondences from the Commission, despite being given multiple opportunities to do so, and had not provided a valid reason for his failure to respond. The Vice President found that the application had no reasonable prospects of success and was therefore dismissed for lack of prosecution under section 587(3)(a) of the Act.

An order to dismiss the application for unfair dismissal for want of prosecution will issue with this decision.

Benjamin James Burdett v ICE Vacations Asia Pacific Pty Ltd T/A ICE Vacations

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established