Connor Webber v Greener Grocer

[2018] FWC 7306

[2018] FWC 7306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Connor Webber
v
Greener Grocer
(U2018/9938)

DEPUTY PRESIDENT DEAN SYDNEY, 29 NOVEMBER 2018

Application for an unfair dismissal remedy.

[1] On 25 September 2018, Mr Connor Webber made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Webber’s application states that he commenced employment with Greener Grocer earlier this year and that his dismissal took effect on 20 August 2018.

[3] The application appeared to have been filed 15 days outside the 21 day period prescribed by s.394(2) of the Act.

[4] On 22 October 2018, Greener Grocer filed an Employers Response (form F3) objecting to the application on the grounds that Mr Webber’s application had been filed outside of the 21 day period.

[5] A conciliation conference scheduled for 23 October 2018 did not proceed because Mr Webber was not contactable.

[6] The matter was allocated to me to determine whether an extension of time should be granted.

[7] On 6 November 2018, the Commission wrote to Mr Webber asking for a written explanation as to the late filing of his application. He was asked to provide this statement by no later than 4pm Tuesday 13 November 2018. No response was received.

[8] On 20 November 2018, correspondence was sent to Mr Webber noting he had previously been directed to file a statement in the Commission but had not done so. He was given until 4pm Friday 23 November 2018 to respond and was advised that in the absence of any material being received his application may be dismissed.

[9] Final attempts were made to contact Mr Webber by telephone on 27 and 29 November 2018.

[10] To date Mr Webber has not responded to any of the Commission’s correspondence.

[11] Section 587(1) 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.

[12] 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).

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

[14] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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