Benjamin Stevenson v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane

[2020] FWC 6514

[2020] FWC 6514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Benjamin Stevenson
v
The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane
(C2020/6922)

COMMISSIONER BOOTH BRISBANE, 3 DECEMBER 2020

Application to deal with an unlawful termination dispute.

[1] On 10 September 2020, Mr Benjamin Stevenson (the Applicant) applied under s.773 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with an unlawful termination dispute. The Respondent is the Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane.

[2] Section 723 of the Act provides:

“723 Unlawful termination applications

A person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.”

[3] A general protections court application is an application to a court under Division 2 of Part 4-1 for orders in relation to an alleged contravention of Part 3-1 of the FW Act. 1 Applications under Division 2 of Part 4-1 are able to be made by national system employees with respect to alleged conduct by national system employers. There is little doubt that the Respondent is a trading corporation, and so a national system employer.2 The Applicant was therefore a national system employee.

[4] On 11 September 2020, a staff member of the Commission contacted the Applicant by telephone and referred him to s.723 of the Act advising that the Applicant may be entitled to make a general protections court application. During the telephone call, the Applicant advised that he was certain that he lodged the correct application as he said he was a local government employee.

[5] On 18 September 2020, correspondence was sent to the parties, indicating that it appears on the face of the application the Commission cannot deal with the dispute under s.773 of the Act. The Respondent was directed to file a Form F9A – Employer’s Response to application for Commission to deal with an unlawful termination dispute by 25 September 2020. The Applicant was directed to provide submissions in relation to the jurisdictional issue mentioned above by 1 October 2020.

[6] No material was filed by the Respondent. On 29 September 2020, my Associate contacted the Respondent by telephone and was advised that the details of the Respondent provided by the Applicant were incorrect and that they had not been served the material.

[7] On 30 September 2020, the Respondent’s Representative contacted my Chambers and advised that they were in the process of preparing a Form F9A and that it will be filed as soon as possible.

[8] On 2 October 2020, the Respondent filed a Form F9A, objecting to the application on the basis that the Applicant was entitled to make a general protection court application. On the same day, correspondence was sent to the parties directing the Applicant to provide submissions in relation to the jurisdictional previously identified and subsequently raised by the Respondent by 8 October 2020.

[9] On 12 October 2020, my Associate attempted unsuccessfully to contact the Applicant to discuss the Applicant’s failure to provide submissions as directed above. A voice message was unable to be left.

[10] On 13 October 2020, my Associate attempted to contact the Applicant on the number provided in the application. An autogenerated message was received indicating that the Applicant’s number had been disconnected. Following this, correspondence was sent to the Applicant requesting an urgent response from the Applicant by 15 October 2020 as to whether he intended to file the material as requested or whether the file should be closed.

[11] On 24 November 2020, my Associate again attempted to contact the Applicant on the number provided in the application. The same autogenerated message was received indicating his number had been disconnected. Correspondence was then sent to the Applicant directing him to contact Chambers by 26 November 2020. The Applicant was also put on notice that if no correspondence was to be received, the matter may be dismissed under s.587 of the Act.

[12] At the time of this decision, the Applicant has not responded to the email of 24 November 2020 and has taken no measures to press the application.

[13] Section 587 of the Act provides as follows:

“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.”

[14] Based on the above, I am satisfied that the Applicant was entitled to make a general protections court application in relation to the conduct alleged in the application. The application is thus not made in accordance with the Act.

[15] Although the power of the Commission to summarily dismiss an application should be sparingly employed and approached with caution, the numerous attempts made to contact the Applicant to discuss the application and the jurisdictional issue mentioned above have amounted to nought. The Applicant has failed to engage with the application. In circumstances where the Applicant has been notified of a deficiency with the application and has been invited to remedy this deficiency, but has failed to do so, I am persuaded that I should exercise my discretion under s.587 of the Act and dismiss the application. An Order to this effect will issue accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR725136>

 1 Fair Work Act 2009, s.368(4)

 2   Ibid, s.14.