Edwin Pearce v Seda College NSW

[2020] FWC 870

[2020] FWC 870

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Edwin Pearce
v
SEDA College NSW
(U2019/13253)

VICE PRESIDENT CATANZARITI SYDNEY, 19 FEBRUARY 2020

Application for an unfair dismissal remedy.

[1] On 27 November 2019, the Fair Work Commission (the Commission) received an application from Edwin Pearce for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with ‘SEDA College NSW’.

[2] On 20 December 2019, SEDA College NSW Limited (the Respondent) filed an Employer Response to Unfair Dismissal Application (Form F3) raising a jurisdictional objection on the basis that Mr Pearce’s application was lodged out of time. The parties agree that Mr Pearce’s dismissal took effect on 4 November 2019.

[3] On 28 January 2020, my chambers sent Mr Pearce correspondence about the extension of time issue. I directed him to provide a statement by 4:00 pm on 4 February 2020 in support of obtaining an extension of time in which to validly lodge his application. However, no response was received.

[4] On 5 February 2020, my chambers sent further correspondence to Mr Pearce, directing him to respond by 4:00 pm on 10 February 2020, and advising that if he did not respond, his application may be dismissed.

[5] To date, Mr Pearce 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.

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

VICE PRESIDENT

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