Joshua Connell v Pender Lea Chalets Pty Limited Summary

[2023] FWC 2028

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joshua Connell
v

Pender Lea Chalets Pty Limited

(U2023/3657)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 AUGUST 2023

Application for an unfair dismissal remedy.

Joshua Connell (the applicant) was employed by Pender Lea Chalets Pty Limited (the respondent) from the 10^th of October 2022 through to the 7^th of April 2023.

On the 27^th of April 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The respondent objected to the application on the basis that the applicant did not meet the minimum employment period required to lodge an application under section 394 of the Fair Work Act 2009.
On the 13^th of July 2023, correspondence was sent to the applicant in relation to the jurisdictional objections raised by the respondent and he was required to respond by the 20^th of July 2023. No response was received from the applicant at this time.
On the 21^st of July 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 25^th of July 2023. He was advised that in the absence of a reply, his application may be dismissed.

To date, the applicant has not responded to the jurisdictional objections raised by the respondent, or any further correspondence sent by my Chambers in writing.

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.

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).

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

An order to that effect will issue with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, Joshua Connell, lodged an unfair dismissal application against his former employer, Pender Lea Chalets Pty Limited, under section 394 of the Fair Work Act 2009. The applicant's employment with the respondent had ended on the 7th of April 2023, and he made his application for a remedy on the 27th of April 2023. The respondent objected to the application, asserting that the applicant did not meet the minimum employment period required to lodge such an application. The matter was heard by Vice President Catanzariti at the Fair Work Commission.

The central legal issue before the court was whether the application should be dismissed due to the applicant's failure to respond to jurisdictional objections and subsequent correspondence regarding these objections. The respondent had raised the objection on the 27th of April 2023, requiring a response from the applicant by the 20th of July 2023. Despite further correspondence from the respondent and the Commission, the applicant did not respond. The court was required to determine whether the failure to respond warranted dismissal of the application under section 587 of the Act.

The court found that section 587(1) of the Act provides the Fair Work Commission with broad discretion to dismiss an application if it is not made in accordance with the Act, is frivolous or vexatious, or has no reasonable prospects of success. Vice President Catanzariti emphasised that the phrase "without limiting when the FWC may dismiss an application" in section 587(1) indicates that the Commission's jurisdiction to dismiss an application extends beyond the circumstances explicitly listed in the subsection. Given the applicant's failure to respond to the jurisdictional objections and subsequent correspondence, the court decided to dismiss the application for want of prosecution under section 587(3)(a) of the Act. An order to this effect will be issued with the decision.

Joshua Connell v Pender Lea Chalets Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established