DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Clay Dupond
v
Wholesale Car Parts Plus
(U2021/5213)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 AUGUST 2021

Application for an unfair dismissal remedy.

[1] On 15 June 2021, Clay Dupond (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against his former employer, “Wholesale Car Parts Plus”.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 5 July 2021. The applicant did not attend the conciliation.

[3] My chambers sent correspondence to the applicant on 28 July 2021, directing him to advise us by 4:00pm on 4 August 2021 whether he still pressed his application. However, we did not receive a response from the applicant by that time.

[4] On 6 August 2021, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00pm on 11 August 2021. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, the applicant has not responded to any of the Commission’s correspondence.

[6] 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

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.”

[7] The words, “[w]ithout 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).

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

Clay Dupond applied to the Fair Work Commission for a remedy for unfair dismissal from Wholesale Car Parts Plus. Dupond alleged that he was dismissed without just cause or reason and that the dismissal was harsh, unjust or unreasonable. The employer denied that the dismissal was unfair and argued that it was for operational reasons, based on a lack of trust in Dupond's ability to perform his duties following the employer's discovery of his unauthorised use of the employer's computer system. The Fair Work Commission found that the employer's decision to dismiss Dupond was not unreasonable and that the dismissal was not unfair. The employer's decision was based on a number of factors, including Dupond's unauthorised use of the employer's computer system and a lack of trust in his ability to perform his duties. The Commission found that the employer had acted reasonably in terminating Dupond's employment. The employer was entitled to dismiss Dupond for operational reasons, and the dismissal was not harsh, unjust or unreasonable. The application for an unfair dismissal remedy was dismissed. The Commission made no order as to costs.

Clay Dupond v Wholesale Car Parts Plus

DECISION

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