Jason Mayne v Brownfield Eng & Maintenance

[2019] FWC 7731

[2019] FWC 7731

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jason Mayne
v
Brownfield Eng & Maintenance
(U2019/10039)

VICE PRESIDENT CATANZARITI SYDNEY, 11 NOVEMBER 2019

Application for an unfair dismissal remedy.

[1] On 9 September 2019, the Fair Work Commission (the Commission) received an application from Jason Mayne for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act), in respect of his employment with ‘Brownfield Eng & Maintenance’. It appears Mr Mayne sent his application to the Office of the Fair Work Ombudsman, who received it on 5 September 2019 and redirected it to the Commission.

[2] On 18 September 2019, Brownfield Engineering & Maintenance Pty Ltd (the Respondent) filed an Employer’s Response (Form F3), raising a jurisdictional objection on the basis that Mr Mayne’s application was lodged out of time. The parties agree that Mr Mayne’s dismissal took effect on 5 August 2019.

[3] On 28 October 2019, my chambers sent Mr Mayne correspondence about the extension of time issue. It noted that even if he had lodged his application directly with the Commission on 5 September 2019, he still would have done so 10 days outside the 21-day period prescribed by s.394(2) of the Act. I directed him either to provide a statement by 4:00 pm on 4 November 2019 in support of obtaining an extension of time in which to validly lodge his application, or confirm that he wished to rely solely on the information provided in his originating application. However, no response was received.

[4] On 5 November 2019, my chambers sent further correspondence to Mr Mayne, directing him to respond by 4:00 pm on 8 November 2019, and advising that if he did not respond, his application may be dismissed.

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

[6] 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.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the 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) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] The words, “[w]ithout 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).

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

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

VICE PRESIDENT

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