Christopher Whitworth v The Trustee for Electra Beverages Unit Trust

[2023] FWC 3196

[2023] FWC 3196

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Christopher Whitworth
v

The Trustee For Electra Beverages Unit Trust

(U2023/8557)

VICE PRESIDENT CATANZARITI SYDNEY, 4 DECEMBER 2023

Application for an unfair dismissal remedy

1. Christopher Whitworth (the Applicant) was employed by The Trustee For Electra Beverages Unit Trust (the Respondent) from 28 September 2022 until he was dismissed on 18 August 2023.

1. On 8 September 2023, the Applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The Respondent raised an objection in the F3 – Employer’s Response Form stating that the Applicant does not meet the minimum employment period.

1. On 7 November 2023, correspondence was sent to the Applicant in relation to the jurisdictional issue mentioned above and he was required to respond by 14 November 2023.  No response was received at this time.

1. Further correspondence was sent to the Applicant on 23 November 2023 and he was required to respond by 5:00pm on 29 November 2023. It was in this correspondence that the Applicant was advised his application would be dismissed without any notice if no response was received.

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

1. 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.”

1. 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).

1. In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

1. An order to that effect will issue with this decision.

VICE PRESIDENT

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