Benjamin John Wallace v NT Mining Operations Pty Ltd

[2019] FWC 6605

[2019] FWC 6605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Benjamin John Wallace
v
NT Mining Operations Pty Ltd
(U2019/8294)

VICE PRESIDENT CATANZARITI SYDNEY, 23 SEPTEMBER 2019

Application for an unfair dismissal remedy.

[1] On 27 July 2019, Mr Benjamin Wallace applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 6 August 2019, NT Mining Operations Pty Ltd (the Respondent) objected to Mr Wallace’s application on the grounds that he earned more than the high income threshold, which was $148,700 at the relevant time. The Respondent stated that Mr Wallace’s income was $186,500 per annum.

[3] On 6 September 2019, my chambers sent correspondence to Mr Wallace, directing him to file a statement to support his claim that he earned less than the high income threshold by 4:00 pm on 13 September 2019.

[4] On 16 September 2019, my chambers sent further correspondence to Mr Wallace, noting that he had not filed a statement as directed, giving him until 4:00 pm on 19 September 2019 to respond, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Wallace has not responded to the Commission.

[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 this 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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