Jason May v City of Gosnells

[2024] FWC 1884

[2024] FWC 1884

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jason May
v

City of Gosnells

(U2024/6009)

DEPUTY PRESIDENT EASTON SYDNEY, 30 JULY 2024

Application for an unfair dismissal remedy

1. Mr Jason May was employed by City of Gosnells until he was dismissed on 22 May 2024. On 27 May 2024, Mr May filed an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth).

1. City of Gosnells objected to the unfair dismissal application because it says it is not a National System Employer. Only employees who were employed by a National System Employer may make an unfair dismissal application.

1. On 4 July 2024, an email was sent to Mr May in relation to whether City of Gosnells was a National System Employer and he was required to respond by 11 July 2024. An SMS was also sent to Mr May telling him that an important email had been sent. Mr May did not respond to this email.

1. A further email was sent to Mr May on 12 July 2024 and he was required to respond by 5:00pm on 17 July 2024. Mr May was also advised that his application may be dismissed without further notice if he did not respond. An SMS was again sent to Mr May. Mr May did not respond to this email either.

1. To date, Mr May has not responded to any of the Commission’s attempts to contact him.

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.

…

(3) The FWC may dismiss an application:

(a)   on its own initiative; or

(b)   on application.

1. Section 587 allows the Commission to dismiss an application if it is apparent that the applicant has stopped pursuing or participating in the proceedings they commenced. Section 587(3) allows the Commission to dismiss an application on its own initiative, so long as the applicant has been afforded procedural fairness. The words “without limiting when FWC may dismiss an application” in s.587(1) confirm that the power to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

1. If an applicant’s conduct or omissions show that they are no longer willing to participate in their own case the Commission is not required to persevere with the application (see Viavattene v Health Care Australia [2013] FWCFB 2532 at [39]).

1. In these circumstances I am satisfied that the facility under s.587 can and should be engaged to dismiss Mr May’s application.

1. Mr May has also been on notice of the likely consequences for his application if he did not respond to the Commission’s inquiry and it is quite possible that he has abandoned his application.

1. For these reasons I have decided to dismiss Mr May’s application on my own initiative for want of prosecution, utilising the facility provided by s.587(3)(a) of the Act.

1. I have separately made an order to this effect (PR777126).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR777125>