Gerard Judd v Macksville Country Club

[2023] FWC 564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Gerard Judd
v

Macksville Country Club

(U2023/46)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 MARCH 2023

Application for an unfair dismissal remedy.

Gerard Judd (the applicant) was employed by Macksville Country Club (the respondent) from the 5^th of May 2021 until he was dismissed on the 19^th of December 2022.

On the 3^rd of January 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Macksville Country Club LTD.
On the 13^th of February 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 20^th of February 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 21^st of February 2023 and he was required to respond by 5:00pm the 24^th of February 2023. It was in this correspondence that the applicant was advised his application would be dismissed without any notice if no response was received.
To date, the applicant has not responded to any of the correspondence sent by my Chambers.

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.

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).

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

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Gerard Judd, an employee, brought an application for unfair dismissal against Macksville Country Club, his former employer, under section 394 of the Fair Work Act 2009. The applicant alleged that his dismissal on 19 December 2022 was unjust and sought remedy. The Macksville Country Club had been identified as the respondent in the proceedings, with its legal business name listed as Macksville Country Club LTD in its F3 – Employer’s Response Form. The Commission noted discrepancies in the legal business name provided and required the applicant to respond to correspondence sent on 13 and 21 February 2023. Despite warnings that failure to respond would result in dismissal of the application without notice, the applicant did not respond to any correspondence.

The primary issue before the court was whether the application could be dismissed for want of prosecution. The court considered section 587 of the Fair Work Act 2009, which allows for the dismissal of an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The court found that the application was not made in accordance with the Act due to the discrepancy in the respondent’s legal business name and the lack of response to correspondence. The court emphasised that its jurisdiction to dismiss an application is not limited to the circumstances set out in section 587(1)(a), (b) and (c) of the Act, and thus could dismiss the application on its own initiative.

In light of the applicant's failure to respond to correspondence and rectify the discrepancy in the legal business name, the court decided to dismiss the application for want of prosecution pursuant to section 587(3)(a) of the Act. The court highlighted the importance of adhering to the procedural requirements and responding to correspondence within the stipulated timeframes. The decision concluded with an order dismissing the application, and the matter was closed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established