Justin Anthony Bygrave v Modern Transport Engineers Australia Pty Ltd Summary

[2023] FWC 616

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Justin Anthony Bygrave
v

Modern Transport Engineers Australia Pty Ltd

(U2023/1504)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 MARCH 2023

Application for an unfair dismissal remedy.

Justin Anthony Bygrave (the applicant) was employed by Modern Transport Engineers Australia Pty Ltd (the respondent) from the 5^th of May 2020 until he was dismissed on the 13^th of January 2023.

On the 24^th of February 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

The application was lodged 21 days out of time.
On the 3^rd of March 2023, correspondence was sent to the applicant in relation to the matter being lodged out of time and he was required to respond by the 8^th of March 2023.
On the 9^th of March 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 13^th of March 2023. He was advised that in the absence of a reply, his application may be dismissed.

To date, the applicant has not responded to any of the correspondence that my Chambers has sent to this date.

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

Justin Anthony Bygrave lodged an application for unfair dismissal remedy against his former employer, Modern Transport Engineers Australia Pty Ltd, under the Fair Work Act 2009. The applicant, employed by the respondent from May 2020, was dismissed on January 2023. On February 2023, Bygrave submitted an application for unfair dismissal, however, it was lodged 21 days past the prescribed time limit. Correspondence was subsequently sent to Bygrave to address the late filing and to request a response. Despite follow-up communications extending the response deadline, Bygrave did not respond to any of the correspondences. This matter came before the Fair Work Commission, Vice President Catanzariti, who was tasked with deciding whether to dismiss Bygrave's application for want of prosecution.

The primary legal issue the Vice President had to decide was whether the Fair Work Commission (FWC) could dismiss Bygrave's application for unfair dismissal under section 587 of the Fair Work Act 2009. The Vice President considered whether the dismissal of the application was warranted due to the application being lodged beyond the time limit, the lack of response to correspondences, and whether the application was being pursued in bad faith. The Vice President also had to determine whether the dismissal of the application for want of prosecution was permissible under section 587(3)(a) of the Act.

The Vice President concluded that the application could be dismissed for want of prosecution. The reasoning was grounded in the explicit language of section 587(1) of the Act, which states that the FWC's jurisdiction to dismiss an application is not restricted to the circumstances outlined in section 587(1)(a), (b), and (c). The Vice President found that Bygrave's failure to respond to correspondences and pursue his application within the prescribed time limit justified the dismissal of his application. The Vice President determined that the application was not being pursued in good faith and had no reasonable prospects of success. Accordingly, the Vice President decided to dismiss the application for want of prosecution under section 587(3)(a) of the Act.

The Vice President issued an order dismissing Bygrave's application for unfair dismissal remedy for want of prosecution. The order reflects the Vice President's decision that the application was not being pursued in good faith and had no reasonable prospects of success. The dismissal was made in accordance with the authority granted under section 587(3)(a) of the Fair Work Act 2009.

Justin Anthony Bygrave v Modern Transport Engineers Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established