Bradley Joseph Clune v RPM Automotive Holdings Pty Ltd Summary

[2022] FWC 2586

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Bradley Joseph Clune
v

RPM Automotive Holdings Pty Ltd

(U2022/9153)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 SEPTEMBER 2022

Application for an unfair dismissal remedy.

Bradley Joseph Clune (the applicant) was employed by RPM Automotive Holdings Pty Ltd (the respondent) from the 2^nd of August 2021 until he was dismissed on the 17^th of August 2022.

On the 12^th of September 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 5 days out of time.
On the 16^th of September 2022, correspondence was sent to the applicant in relation to the matter being lodged out of time and he was required to respond by the 21^st of September 2022.
On the 23^rd of September 2022, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 26^th of September 2022. 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

Bradley Joseph Clune, the applicant, has brought a claim against RPM Automotive Holdings Pty Ltd, the respondent, for unfair dismissal under section 394 of the Fair Work Act 2009. Clune was employed by the respondent from 2 August 2021 until his dismissal on 17 August 2022. Clune lodged his application for a remedy for unfair dismissal on 12 September 2022, which was five days out of time. The Fair Work Commission subsequently issued correspondence to Clune on 16 and 23 September 2022, directing him to respond by specific dates, warning that failure to respond would result in his application being dismissed. Clune has not responded to any correspondence, prompting the Commission to consider dismissing the application for want of prosecution.

The central legal issue in this case is whether the Commission has the jurisdiction to dismiss the application under section 587 of the Act. Clune's application is not only lodged out of time but he has also failed to respond to correspondence from the Commission. The Commission must consider whether it is within its power to dismiss the application, and if so, under which provisions of the Act. Section 587(1) of the Act provides the Commission with the power to dismiss an application if it is not made in accordance with the Act, or if it is frivolous or vexatious, or if it has no reasonable prospects of success. However, section 587(2) of the Act specifies that the Commission must not dismiss an application on the basis that it is frivolous or vexatious, or has no reasonable prospects of success, if the application is under section 365 or 773. The Commission must determine whether Clune's application falls within the exceptions in section 587(2), and if not, whether it is within the Commission's jurisdiction to dismiss the application under section 587(1).

The Commission has found that it has jurisdiction to dismiss the application under section 587(1) of the Act, as the words "Without limiting when the FWC may dismiss an application" at the commencement of section 587(1) establish that the Commission's jurisdiction to dismiss an application is not limited to the circumstances set out in section 587(1)(a), (b) and (c). The Commission has decided to dismiss the application for want of prosecution pursuant to section 587(3)(a) of the Act, as Clune has failed to respond to correspondence from the Commission. The Commission has noted that Clune's application is not only lodged out of time, but he has also failed to respond to correspondence from the Commission, which is a clear indication that he is not prosecuting his application with due diligence. Therefore, the Commission has decided to dismiss the application for want of prosecution.

The Commission will issue an order to that effect with this decision. The dismissal of the application for want of prosecution is a significant outcome, as it demonstrates the importance of complying with the procedural requirements of the Act. It is essential that applicants take their applications seriously and respond to correspondence from the Commission in a timely manner. Failure to do so may result in the dismissal of the application, as seen in this case. The decision serves as a reminder to all applicants to ensure that they comply with the procedural requirements of the Act, and to prosecute their applications with due diligence.

Bradley Joseph Clune v RPM Automotive Holdings Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established