Isaac Graham Nichol v Urban Xtreme Adventures Pty Ltd

[2022] FWC 1102

[2022] FWC 1102

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Isaac Graham Nichol
v

Urban Xtreme Adventures Pty Ltd

(U2022/683)

VICE PRESIDENT CATANZARITI SYDNEY, 10 MAY 2022

Application for an unfair dismissal remedy

1. On the 11^th of January 2022, Isaac Graham Nichol 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 (the Act) against the employer in this matter, Urban Xtreme Adventures Pty Ltd.

1. Isaac Nichol says he was employed by Urban Xtreme Adventures from the 25^th of September 2019 through to the 24^th of December 2021.

1. On the 10^th of February 2022, Urban Xtreme Adventures Pty Ltd filed an Employers Response (form F3) raising a jurisdictional objection on the basis that Isaac Nichol did not serve the minimum employment period.

1. My chambers sent correspondence to the applicant on the 12^th of April 2022 requiring him to provide a statement to support his claim that he had served the minimum employment period. He was asked to provide the information by no later than 4:00pm Tuesday the 19^th of April 2022. No response was received from the applicant. 

1. On the 20^th of April 2022, further correspondence was sent to the applicant directing him to provide a response by 5.00pm on Friday the 22^nd of April 2022. It was in this correspondence that he was advised that in the absence of a reply his application may be dismissed.

1. To date, Isaac Graham Nichol has not responded to any of the Commission’s correspondence.

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, “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 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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