Joshua Wimpenny v The Trustee for Marsden Family Trust
[2024] FWC 929
•19 APRIL 2024
| [2024] FWC 929 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Joshua Wimpenny
v
The Trustee For Marsden Family Trust
(U2024/1611)
| DEPUTY PRESIDENT BINET | PERTH, 19 APRIL 2024 |
Application for an unfair dismissal remedy
On 14 February 2024, Mr Joshua Wimpenny (Mr Wimpenny) filed an application (Application) pursuant to section 394 of Fair Work Act 2009 (Cth) (FW Act) with the Fair Work Commission (FWC) alleging he was unfairly dismissed by The Trustee For Marsden Family Trust.
On 14 March 2024, the Application was allocated to my Chambers for determination.
Directions were issued to parties on 20 March 2024 (Directions). The Directions required Mr Wimpenny to file by 4pm (AWST) Thursday 28 March 2024 his materials in relation to the merits of his Application. The parties were advised that compliance with the Directions was mandatory.
Mr Wimpenny failed to file the materials by the required date and time as set out in the Directions.
On 2 April 2024, Chambers wrote to Mr Wimpenny and reminded him that his materials in relation to the Merits of his Application were overdue.
On 8 April 2024, Mr Wimpenny was invited to file submissions and evidence as to why the Application should not be dismissed by 4pm (AWST) Tuesday 9 April 2024. Chambers advised Mr Wimpenny that if he did not file any such submissions or evidence by 4pm (AWST) Tuesday 9 April 2024, the Application would be dismissed pursuant to section 587 of the FW Act.
No materials were filed in accordance with the Directions and no submissions or evidence were filed in relation to the dismissal of the Application pursuant to section 587 of the FW Act by Mr Wimpenny by 4pm (AWST) Tuesday 9 April 2024.
Section 587 of the FW Act provides:
“s 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.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3 - 2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773, or an application under section 527F that does not consist solely of an application for a stop sexual harassment order, on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
Mr Wimpenny failed to file the materials he was directed to file by the dates specified in the Directions. As at the date of this decision, Mr Wimpenny has still not filed any materials in support of the Application or in response to the dismissal of the Application pursuant to section 587 of the FW Act. Mr Wimpenny has not sought an extension to file his materials in support of the Application or in response to the FWC proposing to dismiss his Application. I am satisfied that Mr Wimpenny has unreasonably failed to comply with directions of the FWC relating to this Application. In the exercise of my discretion under section 587 of the FW Act, I have decided to dismiss the Application.
An Order[1] to this effect will be issued with this decision.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
<PR773369>
[1] Print PR773370.
Printed by authority of the Commonwealth Government Printer
<PR773369>
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