Kevin Spencer v Ndrip Australia Pty Ltd

[2021] FWC 3163

[2021] FWC 3163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kevin Spencer
v
NDRIP Australia Pty Ltd
(U2021/3058)

VICE PRESIDENT CATANZARITI SYDNEY, 2 JUNE 2021

Application for an unfair dismissal remedy.

[1] On 12 April 2021, Kevin Spencer 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 Spencer says he was employed by “NDRIP Australia Pty Ltd” from 3 August 2020 until he was dismissed on 25 March 2021.

[3] On 23 April 2021, NDRIP Australia Pty Ltd T/A N-Drip Australia filed an Objection to unfair dismissal application (form F4) raising a jurisdictional objection on the basis Mr Spencer did not serve the minimum employment period.

[4] My chambers sent correspondence to Mr Spencer on 11 May 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 by no later than 4:00pm on 18 May 2021. A response was not received from Mr Spencer.

[5] On 21 May 2021, further correspondence was sent to Mr Spencer directing him to provide a response by 4.00pm on 26 May 2021. He was advised that in the absence of a reply his application may be dismissed.

[6] To date, Mr Spencer 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

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