Christopher Smith v Project Bravo Brewing Services Pty Ltd Summary

[2023] FWC 3370

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christopher Smith
v

Project Bravo Brewing Services Pty Ltd

(U2023/9126)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 DECEMBER 2023

Application for an unfair dismissal remedy

Christopher Smith (the Applicant) was employed by Project Bravo Brewing Services Pty Ltd (the Respondent) from 18 January 2022 until he was dismissed on 31 August 2023.

On 20 September 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

On 7 November 2023 the Respondent advised the Fair Work Commission (the Commission) that the company was going into liquidation and advised the name of the liquidators as Vincents.

An email was sent to the Liquidators enquiring as to whether they consent to participating in a conciliation in the Commission. The Liquidators responded that they do not consent.

The matter was reallocated to my Chambers. On 29 November 2023, correspondence was sent to the Applicant in relation to the issue that the Respondent has gone into liquidation and he was asked to provide a response. No response was received.

Further correspondence was sent to the Applicant on 8 December 2023 and he was required to respond by 5:00pm on 13 December 2023. It was in this correspondence that the Applicant was advised his application would be dismissed without any notice if no response was received.

To date, the Applicant has not responded to any of the correspondence sent by my Chambers.

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.”

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

The Fair Work Commission heard a claim by Christopher Smith against his former employer, Project Bravo Brewing Services Pty Ltd, for unfair dismissal under the Fair Work Act 2009. Mr Smith was employed by the company from 18 January 2022 until his dismissal on 31 August 2023. Following his dismissal, Mr Smith filed an application for a remedy for unfair dismissal on 20 September 2023. However, the company subsequently went into liquidation, with the liquidators indicating they would not participate in any conciliation process. Despite multiple reminders and opportunities to respond, Mr Smith failed to engage with the Commission’s correspondence.

The primary legal issue before the Commission was whether the application for unfair dismissal could be dismissed for want of prosecution under section 587 of the Fair Work Act 2009. This section allows the Commission to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The Commission noted that the Act provides that the power to dismiss an application is not limited to the circumstances explicitly mentioned in section 587(1). Given Mr Smith's lack of response to the Commission’s communications, and the liquidators' refusal to participate, the Commission concluded that the application had no reasonable prospects of success and was effectively abandoned by the Applicant.

The Commission, exercising its discretion under section 587(3) of the Act, decided to dismiss the application for want of prosecution. The Vice President concluded that Mr Smith's failure to respond to the Commission's repeated notices and the liquidators' refusal to participate rendered the application moot. Consequently, the Commission dismissed the application without further notice.

In light of the dismissal, an order will be issued in accordance with the decision, formally closing the application.

Christopher Smith v Project Bravo Brewing Services Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established