Harley Martin v Unitingcare Community

[2024] FWC 1157

[2024] FWC 1157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Harley Martin
v

Unitingcare Community

(U2024/1336)

DEPUTY PRESIDENT EASTON SYDNEY, 3 MAY 2024

Application for an unfair dismissal remedy

1. Mr Harley Martin was dismissed from his employment on 1 February 2024. On 8 February 2024 Mr Martin filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). In his application Mr Martin named “UnitingCare Community” as his former employer.

1. The legal name nominated by the Respondent in its F3 – Employer’s Response Form was “The Uniting Church in Australia Property Trust (Q.) trading as UnitingCare Community.”

1. On 16 April 2024 correspondence was sent to Mr Martin regarding the legal name of his former employer. The correspondence invited Mr Martin to request an amendment to his application to name a different entity as his former employer, or to provide submissions as to why the entity he nominated was the correct entity. Mr Martin was required to respond by 23 April 2024. Mr Martin did not respond to this correspondence.
   
   

2. Further correspondence was sent to Mr Martin on 24 April 2024 making the same request. Mr Martin was required to respond by 30 April 2024. Mr Martin was also advised that his application may be dismissed without further notice if he did not respond. Mr Martin did not respond to this correspondence.

1. On 1 May 2024 the Commission attempted to contact Mr Martin via telephone twice. However Mr Martin could not be reached and his telephone did not allow voicemail messages to be left.

1. To date, Mr Martin 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.

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, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, 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.

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 Mr Martin’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR774494).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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