Hone Waipouri v Paladin Aus Pty Ltd

[2019] FWC 8167

[2019] FWC 8167

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Hone Waipouri
v
Paladin Aus Pty Ltd
(U2019/10461)

VICE PRESIDENT CATANZARITI SYDNEY, 3 DECEMBER 2019

Application for an unfair dismissal remedy.

[1] On 17 September 2019, Mr Hone Waipouri applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). He named his former employer as ‘Paladin Aus Pty Ltd’.

[2] On 15 October 2019, an entity named Paladin Solutions PNG LTD (Paladin PNG) filed a Form F3 (Employer Response to Unfair Dismissal Application). Paladin PNG objected to Mr Waipouri’ application on the bases that:

•  it was his former employer, not ‘Paladin Aus Pty Ltd’;

•  it was not a national system employer, and therefore Mr Waipouri was not protected from unfair dismissal in respect of his employment by Paladin PNG; and

•  Mr Waipouri earned approximately $151,000 per annum, which is more than the high income threshold of $148,700 at the relevant time.

[3] On 8 November 2019, my chambers sent correspondence to Mr Waipouri, directing him to respond to the non-national system employer and high income threshold objections that Paladin PNG had raised.

[4] On 18 November 2019, my chambers sent further correspondence to Mr Waipouri, noting that he had not responded as directed, giving him until 4:00 pm on 21 November 2019 to respond, and advising that if he did not respond, his application may be dismissed.

[5] On 22 November 2019, Mr Waipouri emailed my chambers as follows:

‘I want to apologise about the delay on this email. I’ve just arrived back from holiday and only seen all my emails now. If it could be possible for me to reply back [sic] to you by Monday 25th November 2019 it would be appreciated. I am just wanting to read through everything and be clear about everything before my reply.

Once again I apologise for not replying earlier as I’ve been away on holiday.’

[6] Later that same day, my chambers advised Mr Waipouri by return email that I would allow him until 4:00 pm on 25 November 2019 to respond to Paladin PNG’s objections. Mr Waipouri did not file anything by that time.

[7] On 26 November 2019, my chambers sent further correspondence to Mr Waipouri, noting that he had again failed to respond as directed, and advising that if he did not respond by 4:00 pm on 29 November 2019, his application would be dismissed.

[8] Mr Waipouri has not contacted my chambers since his email of 22 November 2019.

[9] 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.”

[10] 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).

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

[12] An order to that effect will issue with this decision.

VICE PRESIDENT

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