Leon Costello v Mount Isa Mines Limited

[2019] FWC 4890

[2019] FWC 4890

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leon Costello
v
Mount Isa Mines Limited
(U2019/4349)

VICE PRESIDENT CATANZARITI DARWIN, 15 JULY 2019

Application for an unfair dismissal remedy.

[1] Leon Costello was employed by Mount Isa Mines Limited (the Respondent) until he was dismissed on 8 March 2019. Mr Costello states that he worked for the Respondent as a contractor from February 2018, and was then employed by the Respondent from August 2018. The Respondent states that he was employed from 10 September 2018.

[2] On 15 April 2019, Mr Costello made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). On his own account of events, Mr Costello’s application was lodged 17 days outside the 21-day period prescribed by s.394(2) of the Act.

[3] On 5 June 2019, the Respondent filed an Employer’s Response (Form F3) raising jurisdictional objections on the basis that Mr Costello did not serve the minimum employment period, and that his application was made out of time.

[4] The matter was referred to me to determine the jurisdictional objections. My chambers sent Mr Costello correspondence Mr Costello on 27 June 2019 requiring him to provide a statement, both in support of his claim that he had served the minimum employment period, and the granting of an extension of time for the late lodgement of his application. He was asked to provide this information by no later than 4 July 2019. However, no response was received.

[5] On 5 July 2019, my chambers sent further correspondence to Mr Costello, directing him to provide a response by 4:00 pm on 10 July 2019. He was advised that in the absence of a reply, his application may be dismissed.

[6] To date, Mr Costello 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.

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 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.”

[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 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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