Leonard Potter v Manildra Flour Mills (Manufacturing) Pty Ltd

[2019] FWC 2764

[2019] FWC 2764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Leonard Potter
v
Manildra Flour Mills (Manufacturing) Pty Ltd
(U2019/1644)

DEPUTY PRESIDENT DEAN SYDNEY, 26 APRIL 2019

Application for an unfair dismissal remedy.

[1] Mr Leonard Potter was employed by Manildra Flour Mills (Manufacturing) Pty Ltd (Manildra Flour Mills) from September 2011 until he was dismissed on 16 January 2019.

[2] On 16 February 2019, Mr Leonard Potter made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). The application was lodged 10 days outside the 21 day period prescribed by s.394(2) of the Act.

[3] On 5 March 2019 Manildra Flour Mills filed an Employers Response (form F3) raising a jurisdictional objection on the basis that Mr Potter’s application was made out of time.

[4] Despite the objection Manildra Flour Mills agreed to attend conciliation. The application was initially listed for telephone conciliation before a Fair Work Commission conciliator on 4 March 2019. Mr Potter sought and was granted an adjournment of the conciliation and it was relisted for 25 March 2019. The conciliation could not take place as Mr Potter was unable to be contacted at that time.

[5] The matter was referred to me to determine the jurisdictional objection. Correspondence was sent to Mr Potter on 4 April 2019 requiring him to provide a statement in support of the granting of an extension of time for the late lodgement of his application. He was asked to provide the information by no later than 4pm on 11 April 2019. No response was received from Mr Potter.

[6] On 12 April 2019, further correspondence was sent to Mr Potter directing him to provide a response by 4:00pm 17 April 2019. He was advised that in the absence of a reply his application may be dismissed.

[7] Final attempts were made to contact Mr Potter by telephone on 23 April 2019 without success.

[8] To date, Mr Potter has not responded to any of the Commission’s correspondence.

[9] 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.

[10] 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).

[11] In the circumstances I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

[12] An order to that effect will issue with this decision.

DEPUTY PRESIDENT

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