Dean Barber v The Real Mccoy Snackfood Company Pty Ltd T/A Snackbrands Australia

[2020] FWC 2910

[2020] FWC 2910

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dean Barber
v
The Real Mccoy Snackfood Company Pty Ltd T/A Snackbrands Australia
(U2020/6787)

VICE PRESIDENT CATANZARITI SYDNEY, 4 JUNE 2020

Application for an unfair dismissal remedy.

[1] On 15 May 2020, the Fair Work Commission (the Commission) received an application from Dean Barber for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with The Real Mccoy Snackfood Company Pty Ltd T/A Snackbrands Australia.

[2] Mr Barber said his dismissal took effect on 21 April 2020. Accordingly, it appeared that he had lodged his application more than 21 days after his dismissal took effect.

[3] On 25 May 2020, my chambers sent Mr Barber correspondence about the requirement to obtain an extension of time in order for his application to be validly lodged. I directed him to provide a statement by 5:00 pm on 27 May 2020 in support of obtaining an extension of time in which to validly lodge his application. However, no response was received.

[4] On 28 May 2020, my chambers telephoned Mr Barber. He advised he was not available to speak at the relevant time.

[5] On 29 May 2020, my chambers sent further correspondence to Mr Barber, directing him to respond by 4:00 pm on 2 June 2020, and advising that if he did not respond, his application may be dismissed.

[6] To date, Mr Barber has not responded to any of the Commission’s correspondence.

[7] 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.”

[8] 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).

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

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

VICE PRESIDENT

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