James Grady v Voltaic Energy Pty Ltd T/A Upstream Energy

[2021] FWC 2346

[2021] FWC 2346

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

James Grady
v
Voltaic Energy Pty Ltd T/A Upstream Energy
(U2021/1551)

VICE PRESIDENT CATANZARITI SYDNEY, 28 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 24 February 2021, James Grady made 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).

[2] Mr Grady says he was employed by Voltaic Energy Pty Ltd T/A Upstream Energy (Upstream Energy) from 12 July 2020 until he was dismissed on 8 February 2021.

[3] On 3 March 2021, Upstream Energy filed an Employers Response (form F3) raising a jurisdictional objection on the basis that Mr Grady did not serve the minimum employment period.

[4] My chambers sent correspondence to Mr Grady on 13 April 2021 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 20 April 2021. A response was not received from Mr Grady.

[5] On 21 April 2021, further correspondence was sent to Mr Grady directing him to provide a response by 4.00pm on 26 April 2021. He was advised that in the absence of a reply his application may be dismissed.

[6] To date, Mr Grady has not responded to any of the Commission’s correspondence.

[7] 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.

[8] 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).

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

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

VICE PRESIDENT

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