Daniel Peter John Anton v Delish Wholesale Pty. Ltd

[2022] FWC 1297

[2022] FWC 1297

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Peter John Anton
v

Delish Wholesale Pty. Ltd.

(U2022/2701)

VICE PRESIDENT CATANZARITI SYDNEY, 25 MAY 2022

Application for an unfair dismissal remedy.

1. Daniel Peter John Anton was employed by Delish Wholesale Pty. Ltd. from the 30^th of July 2021 until they were dismissed on the 11^th of February 2022.

1. On the 3^rd of March 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The respondent objected to the application on the basis that Daniel Peter John Anton was never dismissed and that the applicant also did not meet the minimum employment period required to lodged an application under section 394 of the Fair Work Act 2009.
   
   

2. The respondent advised that the applicant was employed on a casual basis and stated that due to the nature of their casual employment, Daniel Peter John Anton’s employment did not meet the requirement to lodge an Unfair Dismissal Application.
   
   

3. On the 11^th of May 2022, correspondence was sent to the applicant in relation to the jurisdictional objections raised by Delish Wholesale Pty. Ltd. and they were required to respond by the 18^th of May 2022. No response was received from Daniel Peter John Anton in this time.
   
   

4. On the 19^th of May 2022, further correspondence was sent to the applicant directing them to provide a response by 5:00pm on the 23^rd of May 2022. They were advised that in the absence of a reply their application may be dismissed.

1. To date, Daniel Peter John Anton has not responded to the jurisdictional objections raised by the respondent or any further correspondence sent by my Chambers in writing.

1. 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.

(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.

1. 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).

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

1. An order to that effect will issue with this decision.

VICE PRESIDENT

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