Daniel Foster v Blenners Transport

[2020] FWC 3065

[2020] FWC 3065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Daniel Foster
v
Blenners Transport
(U2019/14548)

VICE PRESIDENT CATANZARITI SYDNEY, 11 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 23 December 2019, Daniel Foster applied for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). He named his former employer as Blenners Transport (Blenners).

[2] On 17 January 2020, Blenners filed an Employer’s Response (Form F3) to Mr Foster’s application. Blenners objected to the application on the basis that Mr Foster was not its employee.

[3] On 12 May 2020, my chambers sent correspondence to Mr Foster asking whether he still pressed his application against Blenners, or if he wished to request to amend his application to name another entity as the respondent. He was directed to respond by 4:00 pm on 19 May 2020. However, no response was received.

[4] On 20 May 2020, my chambers sent further correspondence to Mr Foster, directing him to respond by 4:00 pm on 25 May 2020, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Foster 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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