Guy Otto v Cal-Mac Pty Ltd

[2022] FWC 378

[2022] FWC 378

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Guy Otto
v

Cal-Mac Pty Ltd

(U2022/126)

VICE PRESIDENT CATANZARITI SYDNEY, 23 FEBRUARY 2022

Application for an unfair dismissal remedy

1. On 30 December 2021, Guy Otto (the applicant) filed an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act) in relation to his employment with Cal-Mac Pty Ltd.

1. The application says that the applicant’s dismissal took effect on 12 November 2021. Accordingly, the application was lodged outside of the 21-day period prescribed by s.394(2) of the Act.

1. On 3 February 2022, my chambers sent correspondence to the applicant, directing him to respond in writing by 8 February 2022 explaining why he believed there were exceptional circumstances such that he should be granted an extension of time in which to validly lodge his application.

1. On 9 February 2022, my chambers sent further correspondence to the applicant, noting he had not responded and directing him to provide a response by 11 February 2022. He was advised that in the absence of a reply, his application may be dismissed without further notice.

1. To date, the applicant has not responded to any of the Commission’s attempts to contact him.

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, ‘[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 ss.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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