James Singer v Dominoes Summary

[2023] FWC 2044

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

James Singer
v

Dominoes

(U2023/5081)

VICE PRESIDENT CATANZARITI

SYDNEY, 16 AUGUST 2023

Application for an unfair dismissal remedy.

James Singer (the applicant) began employment with Dominoes (the respondent) on the 31^st of May 2022.
On the 8^th of June 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Hotcell Pty Ltd & Northern Beaches Trust.
On the 13^th of July 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 20^th of July 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 21^st of July 2023, and he was required to respond by the 25^th of July 2023 at 5:00pm. It was in this correspondence the applicant was notified that if no response was received, his application would be dismissed without any further notice.
To date, the applicant has not responded to any of the correspondence sent by my Chambers.

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

James Singer, the applicant, applied to the Fair Work Commission (FWC) for a remedy under section 394 of the Fair Work Act 2009 (Act) claiming unfair dismissal by Dominoes, the respondent. Singer commenced his employment with Dominoes on 31 May 2022, and he lodged his application for unfair dismissal on 8 June 2023. The respondent's legal business name was identified as Hotcell Pty Ltd & Northern Beaches Trust, and discrepancies in the legal business name were raised in correspondence to Singer. Failure to respond to these correspondences led to the application being dismissed without further notice. The applicant did not respond to any correspondence, leading to the application being dismissed for want of prosecution.

The primary legal issue the FWC addressed was whether the applicant's failure to respond to correspondences warranted dismissal of the application. The FWC considered section 587 of the Act, which allows the FWC to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. The FWC noted that the jurisdiction to dismiss an application is not limited to the circumstances outlined in section 587(1)(a), (b), and (c). Therefore, the FWC exercised its discretion to dismiss the application for want of prosecution under section 587(3)(a) of the Act.

The FWC concluded that the applicant's failure to respond to correspondences regarding the legal business name discrepancy and subsequent warnings about the potential dismissal of the application constituted a lack of prosecution. As such, the FWC dismissed the application for want of prosecution, and an order to that effect was issued with this decision. This outcome underscores the importance of responding to FWC correspondences in a timely manner and highlights the consequences of failing to do so.

James Singer v Dominoes

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established