David Beach v Berenson Fluid Power

[2021] FWC 3166

[2021] FWC 3166

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Beach
v
Berenson Fluid Power
(U2021/2022)

VICE PRESIDENT CATANZARITI SYDNEY, 2 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 11 March 2021, David Beach (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against “Berenson Fluid Power”.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 29 March 2021. The applicant did not attend the conciliation.

[3] My chambers sent correspondence to the applicant on 11 May 2021, directing him to advise us by 4:00pm on 18 May 2021 whether he still pressed his application. However, we received no response from the applicant by that time.

[4] On 21 May 2021, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00pm on 26 May 2021. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, the applicant 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.

VICE PRESIDENT

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