Daniel Peter John Anton v Delish Wholesale Pty. Ltd Summary

[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.

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.

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).

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.
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.
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.
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.

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.

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.

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).

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

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Daniel Peter John Anton brought a claim for unfair dismissal against Delish Wholesale Pty. Ltd. before the Fair Work Commission under the Fair Work Act 2009. Anton alleged that he was dismissed on 11 February 2022, but Delish Wholesale Pty. Ltd. disputed that Anton was formally dismissed and argued that he was employed on a casual basis, and therefore, did not meet the threshold employment period to lodge an unfair dismissal application. Anton filed his application for unfair dismissal on 3 March 2022, and Delish Wholesale Pty. Ltd. responded by raising jurisdictional objections. Despite multiple notices and opportunities to respond, Anton did not address the objections or respond to further correspondence from the Commission. The Commission was required to decide whether Anton's application should be dismissed due to a lack of prosecution.

The Commission considered the provisions of the Fair Work Act 2009, particularly section 587, which outlines the circumstances under which the Commission may dismiss an application. The Commission found that section 587(1) of the Act grants the Commission broad discretion to dismiss an application, not limited to the specific grounds listed in the section. The Commission concluded that Anton's failure to respond to the jurisdictional objections and multiple notices to respond constituted a want of prosecution, warranting dismissal of the application. The Commission noted that Anton had not met the requirements of the Act and had not responded to the Commission's requests for a response, which left the Commission with no choice but to dismiss the application.

In light of the above, the Commission decided to dismiss Anton's unfair dismissal application for want of prosecution. The decision was made under section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative. The Commission concluded that Anton's failure to respond to the jurisdictional objections and further notices rendered the application unprosecutable. The Commission issued an order dismissing Anton's application and noted that Anton had not provided any evidence or argument to support his claim, leaving the Commission with no option but to dismiss the application.

Anton's application for unfair dismissal was dismissed, and an order to that effect was issued by the Commission. The Commission found that Anton's failure to respond to the jurisdictional objections and multiple notices to respond constituted a want of prosecution, warranting dismissal of the application. The Commission noted that Anton had not met the requirements of the Act and had not responded to the Commission's requests for a response, which left the Commission with no choice but to dismiss the application. The decision was made under section 587(3)(a) of the Act, which allows the Commission to dismiss an application on its own initiative.

Daniel Peter John Anton v Delish Wholesale Pty. Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established