Joshua Potter v BnB Constructions

[2021] FWC 2790

[2021] FWC 2790

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Potter
v
BNB Constructions
(U2021/1982)

VICE PRESIDENT CATANZARITI SYDNEY, 20 MAY 2021

Application for an unfair dismissal remedy.

[1] On 10 March 2021, Joshua Potter made an application with the Fair Work Commission (the Commission) for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Mr Potter says he was employed by “BNB Constructions” from 26 August 2020 until he was dismissed on 2 March 2021.

[3] On 16 March 2021, BNB Constructions Qld Pty Ltd filed an Employers Response (form F3) advising Mr Potter was employed as a casual employee from 12 January 2021 to 2 March 2021. A jurisdictional objection on the basis that Mr Potter did not serve the minimum employment period was raised by BNB Constructions Qld Pty Ltd.

[4] My chambers sent correspondence to Mr Potter on 30 April 2021 requiring him to provide a statement to support his claim that he had served the minimum employment period. He was asked to provide the information within seven days. A response was not received from Mr Potter.

[5] On 10 May 2021, further correspondence was sent to Mr Potter directing him to provide a response by 4.00pm on 13 May 2021. He was advised that in the absence of a reply his application may be dismissed.

[6] To date, Mr Potter has not responded to any of the Commission’s correspondence.

[7] 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.

[8] 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).

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

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR729882>