Dallas Wynne v Steelcraft Framing

[2019] FWC 7734

[2019] FWC 7734

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dallas Wynne
v
Steelcraft Framing
(U2019/10586)

VICE PRESIDENT CATANZARITI SYDNEY, 12 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] Dallas Wynne states he was employed by Steelcraft Framing from 21 January 2019 until his dismissal took effect on 20 September 2019. He applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) that same day.

[2] On 25 September 2019, Steelcraft Framing Pty Ltd (the Respondent) filed an Employer’s Response (Form F3), objecting to Mr Wynne’s application on the basis that he had not completed the minimum employment period to be eligible for an unfair dismissal remedy. The Respondent said that Mr Wynne only worked for it from 22 January 2019 to 17 September 2019. The Respondent also said it was a small business employer.

[3] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr Wynne on 28 October 2019, requiring him to provide a statement to support his claim that he had completed the minimum employment period. He was asked to provide this information by 4:00 pm on 4 November 2019. However, we received no response from Mr Wynne by that time.

[4] On 5 November 2019, my chambers sent further correspondence to Mr Wynne, directing him to provide a response by 4:00 pm on 8 November 2019. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, Mr Wynne 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

(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.”

[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.

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

VICE PRESIDENT

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