John Nicolis v Canterbury Council T/A Canterbury Bankstown City Council

[2018] FWC 6870

[2018] FWC 6870

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

John Nicolis

v

Canterbury Council T/A Canterbury Bankstown City Council

(U2018/9232)

Deputy President Dean SYDNEY, 19 NOVEMBER 2018

Application for an unfair dismissal remedy.

1. On 7 September 2018, Mr John Nicolis made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

1. Mr Nicolis’ application states that he commenced employment with Canterbury Council T/A Canterbury Bankstown City Council (Canterbury Council) on 25 May 2015 and that his dismissal took effect on 6 March 2018.

1. The application appeared to have been filed 164 days outside the 21 day period prescribed by s.394(2) of the Act.

1. On 4 October 2018, Canterbury Council filed an Employers Response (form F3) objecting to the application on the grounds that Mr Nicolis’ application had been filed outside of the 21 day period and that Mr Nicolis was, at the time of his employment, employed under a NSW State Award, specifically the Local Government (State) Award 2017.

1. The matter was allocated to me to determine the jurisdictional objections.

1. On 10 October 2018, the Commission wrote to Mr Nicolis advising him of the requirement to be a National System Employee.  

1. Mr Nicolis was asked to provide a response within 7 days as to whether he agreed he was not a National System Employee the case. No response was received.

1. On 18 October 2018, a voice mail message was left for Mr Nicolis giving him until
   12 noon Friday 19 October 2018 to respond. He was advised that in the absence of any material being received his application may be dismissed.

1. Later that day Mr Nicolis phoned the Commission and this requirement was again explained to him. He was reminded that he had until 12 noon 19 October 2018 to respond to the Commission’s correspondence, otherwise his application would be dismissed.

1. Further numerous attempts were made to contact Mr Nicolis by telephone.

1. On 29 October 2018 Canterbury Council advised the Commission that Mr Nicolis had filed an application with the New South Wales Industrial Relations Commission.

1. To date Mr Nicolis has not responded to any of the Commission’s correspondence.

1. 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.

1. 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). Mr Nicolas has not responded to the Commission despite numerous opportunities to do so.

1. 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.

1. An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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