Joshua Hayes v The Trustee for Tapco Unit Trust

[2022] FWC 2130

[2022] FWC 2130

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Joshua Hayes
v

The Trustee for Tapco Unit Trust

(U2022/5526)

VICE PRESIDENT CATANZARITI SYDNEY, 15 AUGUST 2022

Application for an unfair dismissal remedy.

1. Joshua Hayes (the applicant) was employed by The Trustee for Tapco Unit Trust (the respondent) from the 10^th of November 2020 until he was dismissed on the 4^th of May 2022.

1. On the 19^th of May 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
   
   

2. The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Followmont Transport Pty Ltd as The Trustee for Tapco Unit Trust.
   
   

3. On the 7^th of July 2022, correspondence was sent to the applicant and his representative at the time (Stephen Gaffney of Unfair Dismissals Experts Pty Ltd). My Chambers eventually received a response on the 18^th of July, however the representative filed an F54 – Notice of Representative Ceasing to Act.
   
   

4. The representative mentioned in a separate email that he filed this documentation due to the applicant not being able to be contacted.
   
   

5. On the 22^nd of July, correspondence was sent to the applicant from my Chambers asking him to provide an answer by the 25^th of July whether he wished to continue this claim or not. A response was never received from the applicant regarding this correspondence or the correspondence sent on the 7^th of July.
   
   

6. To date, the applicant has not responded to any of the 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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