Eco Cottages Pty Ltd

[2024] FWC 577

[2024] FWC 577

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.120—Redundancy pay

Eco Cottages Pty Ltd

(C2023/7514)

DEPUTY PRESIDENT LAKE BRISBANE, 11 MARCH 2024

Variation of redundancy pay – failure to prosecute claim – s.587 – application dismissed.

1. Eco Cottages (the Applicant) has applied pursuant to s.120(2) of the Fair Work Act 2009 (the Act) to have the Fair Work Commission (the Commission) to reduce the redundancy entitlement of Mr Alex McKinnon to nil. The Applicant contended that they had an incapacity to pay the redundancy entitlement on the basis that the Director of the company had passed away and the company was anticipated to be wound up.

1. On 3 January 2024, I issued directions to the parties requiring the Applicant or his representative to provide written submission and evidence in support of its application by no later than 19 January 2024. No material was received from the Applicant or his representative in accordance with the directions.

1. On 6 February 2024, a further email was sent from my Chambers requiring the Applicant or his representative to file their material by no later than 16 February 2024. The email noted that the failure of the Applicant to file material may lead to the dismissal of their application. The Applicant or his representative failed to comply with the extended date for the filing of material.

1. My Associate contacted the Applicant’s representative by telephone on 27 February 2024, who confirmed that they intended to discontinue the application. An email was then sent to the parties reflecting this, and the Applicant was directed to confirm whether they wished to press the application by 28 February 2024. No response was received from the Applicant.

1. On 4 March 2024, Chambers emailed the parties outlining my intention to dismiss the application pursuant to s.587 of the Act if the Applicant did not provide sufficient reasons for the delay by 5 March 2024.

1. Without any material to support the Applicant’s incapacity to pay, I am not satisfied that any discretion should be exercise Mr McKinnon’s redundancy to nil.

1. Section 587 of the Act states as follows:

“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.”

1. The words, “Without limiting when FWC may dismiss an application” at the beginning 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. It is expected that the Applicant pay Alex McKinnon’s redundancy entitlement in accordance with s.119 of the Act.

DEPUTY PRESIDENT

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