Gavin Lionel Hikupehi Carroll v Macmahon Underground

[2023] FWC 954

[2023] FWC 954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gavin Lionel Hikupehi Carroll
v

Macmahon Underground

(U2023/1352)

VICE PRESIDENT CATANZARITI SYDNEY, 26 APRIL 2023

Application for an unfair dismissal remedy.

1. Gavin Lionel Hikupehi Carroll (the applicant) was employed by Macmahon Underground (the respondent) from the 17^th of February 2022 onwards.

1. On the 20^th of February 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
   
   

2. The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Macmahon Underground Pty Ltd.
   
   

3. The respondent also raised an objection in the F3 – Employer’s Response Form stating that the applicant earned higher than the income threshold, claiming the applicant earned $206,515.
   
   

4. On the 28^th of March 2023, correspondence was sent to the applicant in relation to the jurisdictional issues mentioned above and he was required to respond by the 4^th of April 2023. No response was received at this time.
   
   

5. Further correspondence was sent to the applicant on the 5^th of April 2023 and he was required to respond by 5:00pm the 11^th of April 2023. It was in this correspondence that the applicant was advised his application would be dismissed without any notice if no response was received.
   
   

6. To date, the applicant has not responded to any of the correspondence sent by my Chambers.

1. 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.

1. 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).

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. An order to that effect will issue with this decision.

VICE PRESIDENT

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