Christopher Whitworth v The Trustee for Electra Beverages Unit Trust Summary

[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

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.

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).

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

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.

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.

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 applicant, Christopher Whitworth, brought an unfair dismissal claim against his former employer, The Trustee for Electra Beverages Unit Trust, before the Fair Work Commission. Whitworth alleged that he was dismissed from his employment on 18 August 2023, and subsequently applied for a remedy for unfair dismissal under section 394 of the Fair Work Act 2009. The employer objected to the application, arguing that Whitworth did not meet the minimum employment period required to lodge such a claim. Whitworth did not respond to correspondence from the Commission regarding the jurisdictional objection, leading to the dismissal of his application.

The central issue before the Commission was whether it had the jurisdiction to hear the applicant's claim of unfair dismissal. This hinged on whether Whitworth met the minimum employment period stipulated by the Fair Work Act 2009, and if the Commission could dismiss the application for want of prosecution under section 587 of the Act. The Commission considered the lack of response from Whitworth to correspondence sent by the Commission, which highlighted that his application would be dismissed if he did not respond.

The Commission concluded that, based on the absence of a response from the applicant to the jurisdictional objection, the application had no reasonable prospects of success and was effectively abandoned. The Commission found that it had the jurisdiction to dismiss the application for want of prosecution under section 587(3)(a) of the Act, as the applicant had not adhered to the requirements to pursue his claim. The Commission dismissed the application and indicated that an order would be issued accordingly.

The Fair Work Commission dismissed the unfair dismissal application brought by Christopher Whitworth against The Trustee for Electra Beverages Unit Trust for want of prosecution. This decision was made because Whitworth did not respond to the jurisdictional objection raised by the employer and the Commission's correspondence, which indicated that his application would be dismissed if he did not respond. The Commission concluded that the application had no reasonable prospects of success and was effectively abandoned by the applicant.

Christopher Whitworth v The Trustee for Electra Beverages Unit Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established