Jordan Lacey v Tingalpa Landscaping Supplies T/A TLS Online Pty Ltd

[2018] FWC 5728

[2018] FWC 5728

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Jordan Lacey
v
Tingalpa Landscaping Supplies T/A TLS Online Pty Ltd
(U2018/6199)

DEPUTY PRESIDENT DEAN SYDNEY, 12 SEPTEMBER 2018

Application for an unfair dismissal remedy.

[1] On 17 June 2018, Mr Jordan Lacey made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009.

[2] Mr Lacey’s application states that he commenced employment with Tingalpa Landscaping Supplies T/A TLS Online Pty Ltd (Tingalpa) on 13 March 2017 and that his dismissal took effect on either 10 May 2018, when he was notified by telephone, or on
30 May 2018 when he received his letter of Termination and Separation Certificate.

[1] On 3 July 2018 Tingalpa filed an Employers Response (Form F3) objecting to the application on the grounds that Mr Lacey’s application had been filed outside of the 21 day period and the dismissal was consistent with the Small Business Fair Dismissal Code. Tingalpa stated that the applicant’s last day of work was 10 May 2018.

[1] A dismissal takes effect when it is communicated to the employee who is being dismissed, 1 and can be communicated orally.2

[2] Mr Lacey’s application acknowledged that he was notified of the dismissal by telephone on 10 May 2018, accordingly, the application appeared to have been filed 17 days outside the 21 day period prescribed by s.394(2) of the Act.

[1] The matter was listed for conciliation by telephone before a Fair Work Commission conciliator on 26 July 2018. However, the conciliation could not take place as Mr Lacey was not able to be contacted at that time.

[1] The matter was allocated to me to determine whether an extension of time should be granted.

[2] On 7 August 2018, the Commission wrote to Mr Lacey asking for a written explanation as to the late filing of his application. He was asked to provide this statement no later than 4:00 pm on 14 August 2018. No response was received.
[1] On 21 August 2018, correspondence was sent to Mr Lacey noting he had previously been directed to file a statement in the Commission but had not done so. He was given until 4:00 pm on Friday 24 August 2018 to respond and was advised that in the absence of any material being received his application may be dismissed.

[2] Final attempts were made to contact Mr Lacey by telephone on 3 September 2018.

[3] To date Mr Lacey has not responded to any of the Commission’s correspondence.

[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.

[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).

[2] 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.

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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 1   Burns v Aboriginal Legal Service of Western Australia (Inc) (unreported, AIRCFB, 21 November 2000) print T3496.

 2   Plaksa v Rail Corporation NSW[2007] AIRC 333.