Jay Easton v Glen Industries

[2018] FWC 2744

[2018] FWC 2744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jay Easton
v
Glen Industries
(U2018/3106)

DEPUTY PRESIDENT DEAN SYDNEY, 16 MAY 2018

Application for an unfair dismissal remedy.

[1] On 23 March 2018, Mr Jay Easton made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[1] The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 26 April 2018. However, the conciliation could not take place as the conciliator was not available at that time. The conciliator was unable to make contact with the applicant to discuss re-scheduling the conciliation.

[2] The application was allocated to me as it appeared that Mr Easton’s application had been made outside the 21 day period prescribed by s.394(2) of the Act. Correspondence to that effect was sent to Mr Easton on 3 May 2018. The correspondence required him to file in the Commission a statement explaining why the time for the lodgement of his application should be extended.

[3] On 11 May 2018, correspondence was sent to Mr Easton noting that he had previously been directed to file a statement in the Commission but had not done so. Mr Easton was given until 4:00pm on 14 May 2018 to respond. He was advised that in the absence of any material being received, his application may be dismissed.

[4] Section 587(1) 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.

[5] 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).

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

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

DEPUTY PRESIDENT

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