James Edward Thompson v Brisbane City Council

[2022] FWC 2796

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.773—Termination of employment

James Edward Thompson
v

Brisbane City Council

(C2022/5812)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 OCTOBER 2022

Application to deal with an unlawful termination dispute

James Edward Thompson (the applicant) was employed by Brisbane City Council (the respondent).

On the 21^st of August 2022, the applicant made an application to deal with an unlawful termination dispute under section 773 of the Fair Work Act 2009 (the Act).

On the 14^th of September 2022, correspondence was sent to the applicant regarding the objection raised in the respondent’s F9A – Response to an Unlawful Termination Dispute, which states that the applicant had named the incorrect employer in his Unlawful Termination application. No response was received by the applicant at this time.
Further correspondence was sent on the 23^rd of September 2022 requiring the applicant to respond by 5:00pm on the 27^th of September 2022. It was in this correspondence that the applicant was informed if no response was received, his application would be dismissed without further notice.
To date, the applicant has not responded to the jurisdictional objections raised by the respondent, or any further correspondence sent by my Chambers in writing.

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

In the matter of James Edward Thompson v Brisbane City Council, the Fair Work Commission was asked to resolve an application concerning the unlawful termination of employment. James Edward Thompson, the applicant, had filed an application against Brisbane City Council, the respondent, asserting that his employment had been terminated unlawfully under section 773 of the Fair Work Act 2009. The Commission was tasked with determining whether the application should proceed and if the jurisdictional objections raised by the respondent were valid.

The primary legal issue before the Commission was whether the application could proceed given the respondent's objection that the applicant had named the incorrect employer. Additionally, the Commission had to consider whether the applicant's failure to respond to correspondence from the Commission warranted dismissal of the application. The respondent argued that the application should be dismissed as it did not comply with the requirements of the Act and lacked reasonable prospects of success.

The Fair Work Commission, after reviewing the application and the jurisdictional objections raised by the respondent, found that the applicant had not responded to the correspondence sent by the Commission or to the respondent's objections. The Commission noted that section 587 of the Act allows for the dismissal of applications that are not made in accordance with the Act, are frivolous or vexatious, or have no reasonable prospects of success. Given the applicant's inaction and the jurisdictional objections, the Commission decided to dismiss the application for want of prosecution. The Commission exercised its discretion under section 587(3)(a) of the Act to dismiss the application on its own initiative.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established