Gene Mugridge v Toga Hotels

[2020] FWC 4751

[2020] FWC 4751

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gene Mugridge
v
Toga Hotels
(U2020/8751)

VICE PRESIDENT CATANZARITI SYDNEY, 7 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] Gene Mugridge (the applicant) states that he worked for ‘Toga Hotels’ from 20 November 2019, was notified of his dismissal on 3 June 2020 and that his dismissal took effect that same day. On 24 June 2020, he applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).

[2] On 9 July 2020, Toga Hotels T/A Rendezvous Hotel Sydney Central (the respondent) lodged an Employer’s Response (Form F3), objecting to the application on the basis that the applicant’s casual employment was not regular and systematic, and that he had no reasonable expectation of continuing employment on such a basis.

[3] My chambers wrote to the applicant on 21 August 2020, requiring him to provide a statement to support his claim that he had completed the minimum employment period. He was asked to provide this information by 4:00 pm on 28 August 2020. We received no response by that deadline.

[4] On 31 August 2020, my chambers sent further correspondence to the applicant, directing him to provide a response by 4:00 pm on 3 September 2020. He was advised that in the absence of a reply, his application may be dismissed.

[5] To date, the applicant has not responded to 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.

VICE PRESIDENT

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