Jon Bensemann v Hays Recruitment (Employed by Services Australia)

[2022] FWC 1136

[2022] FWC 1136

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jon Bensemann
v

Hays Recruitment (Employed by Services Australia)

(U2021/10807)

VICE PRESIDENT CATANZARITI SYDNEY, 13 MAY 2022

Application for an unfair dismissal remedy.

1. Jon Bensemann was employed by Hays Recruitment (Employed by Services Australia) from the 1^st of March 2021 until they were dismissed on the 23^rd of November 2021.

1. On the 25^th of November 2021, Jon Bensemann made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. A conciliation was scheduled on the 28^th of February 2022 and parties did not reach an agreement at this conciliation, at which time the matter was then allocated to my Chambers.
   
   

2. On the 1^st of April, correspondence was sent to the applicant in relation to a jurisdictional objection raised by Hays Recruitment (Employed by Services Australia). Jon Bensemann was required to respond by the 8^th of April 2022.
   
   

3. Jon Bensemann had responded to this correspondence enquiring what they needed to do. Multiple emails and a phone call was attempted in order to contact Jon Bensemann to explain the process. The applicant did not respond.
   
   

4. On the 26^th of April 2022, further correspondence was sent to Jon Bensemann directing them to provide a response by 5:00pm on the 27^th of April 2022. They were advised that in the absence of a reply their application may be dismissed.

1. To date, Jon Bensemann has not responded to the jurisdictional objections raised by the respondent or any further correspondence sent by my Chambers.

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.

(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).

1. In the circumstances 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.

VICE PRESIDENT

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