Kent Wirth v McDonald's

[2021] FWC 6369

[2021] FWC 6369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.773—Termination of employment

Kent Wirth
v
McDonald’s
(C2021/85)

VICE PRESIDENT CATANZARITI SYDNEY, 18 NOVEMBER 2021

Application to deal with an unlawful termination dispute.

[1] On 6 January 2021, Kent Wirth (the applicant) lodged an application for the Fair Work Commission (the Commission) to deal with an unlawful termination dispute under s.773 of the Fair Work Act 2009 (the Act) in relation to his employment with ‘McDonald’s’ (the respondent).

[2] The application form indicates that the applicant lives in Nevada, in the United States of America. The application form contains no contact details for the respondent, only a postcode, also in Nevada.

[3] On 7 January 2021, one of the Commission’s client services representatives sent the applicant a letter via email, noting the application was incomplete and requesting that he complete the relevant section of the application form with the respondent’s contact details.

[4] The applicant did not respond to the Commission’s client services representative. The matter was subsequently allocated to chambers.

[5] On 11 November 2021, my chambers emailed the applicant asking him to respond by 4:00 pm AEDT on 16 November 2021 advising whether he wanted to proceed with this application. The email further advised that if the Commission did not hear from him by the deadline set, it may dismiss his application without further notice.

[6] To date, the applicant has not responded to any of the Commission’s attempts to contact him.

[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, ‘[w]ithout 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 ss.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

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