David Jones v Redpath Australia Pty Ltd T/A Redpath Australia

[2020] FWC 6583

[2020] FWC 6583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

David Jones
v
Redpath Australia Pty Ltd T/A Redpath Australia
(U2020/13010)

VICE PRESIDENT CATANZARITI SYDNEY, 7 DECEMBER 2020

Application for an unfair dismissal remedy.

[1] On 30 September 2020, David Jones made an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Jones says that he commenced employment with Redpath Australia Pty Ltd T/A Redpath Australia (Redpath Australia) on 6 March 2018 and that his dismissal took effect on 16 September 2020.

[3] On 13 October 2020, Redpath Australia filed an Employer Response (form F3) objecting to the application on the grounds that Mr Jones had earnt more than the high income threshold and his employment was not covered by a modern award or an enterprise agreement.

[4] My chambers sent correspondence to Mr Jones on 5 November 2020 indicating that, based on information provided by Redpath Australia in its form F3, it appeared that he may not be protected from unfair dismissal under the Act. The correspondence required him to provide a statement within seven days to support his claim of earning less than the high income threshold or that he was covered by a modern award or enterprise agreement. No response was received from Mr Jones.

[5] On 13 November 2020, further correspondence was sent to Mr Jones directing him to provide a response by 4:00pm on 18 November 2020. He was advised that in the absence of a reply his application may be dismissed.

[6] On 18 November 2020, Mr Jones contacted my chambers requesting for a 10-day extension of time to provide his response regarding the high income threshold on the basis that he was seeking legal advice from a solicitor. I granted Mr Jones’ extension of time request and correspondence was sent to Mr Jones by my chambers advising him that his response was due by 5:00pm on 30 November 2020.

[7] My chambers received correspondence from Redpath Australia’s legal representative on 20 November 2020 noting that Mr Jones had solicitors instructed from at least 23 October 2020 and they confirmed on 18 November 2020 that Mr Jones was no longer engaging those solicitors. Redpath Australia made an application for the matter to be determined on the papers and be dismissed pursuant to sections 587 or 399A(1)(b) of the Act if Mr Jones did not provide his response.

[8] On 30 November 2020, Mr Jones sent to my chambers a further request to obtain an extension of time to provide his high income threshold jurisdictional objection response. Mr Jones sought a further four days to provide his response on the basis he had engaged another law firm to review his documents and was awaiting their response. I granted Mr Jones’s request for an extension but on the basis on that he provide his response to the Commission by close of business on 4 December 2020 and if he did not submit his response by then his application would be dismissed without further notice.

[9] Despite every opportunity given to Mr Jones to obtain legal advice, Mr Jones has failed to comply with the Commission’s direction to file his response by 4 December 2020 and no further communication has been received from Mr Jones.

[10] 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.

[11] 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).

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

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR725225>