| [2022] FWC 2896 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Malcolm Mcnicol
v
Conveyor Maintenance Services (Aust) P/L
(U2022/2940)
| VICE PRESIDENT CATANZARITI | SYDNEY, 31 OCTOBER 2022 |
Application for an unfair dismissal remedy.
Malcolm Mcnicol (the applicant) was employed by Conveyor Maintenance Services (Aust) P/L (the respondent) from the 18th of March 2013 until he was dismissed on the 3rd of February 2022.
On the 9th of March 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
According to the respondent’s F3 – Employer’s Response Form, the application was lodged 13 days out of time.
On the 13th of May 2022, correspondence was sent to the applicant in relation to the matter being lodged out of time and he was required to respond by the 18th of May 2022.
On the 19th of May 2022, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 20th of May 2022. 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
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- AGLC
- Malcolm Mcnicol v Conveyor Maintenance Services (Aust) P/L [2022] FWC 2896
- Case
- [2022] FWC 2896
- Decision Date
CaseChat Overview and Summary
The Commission had to determine whether it was appropriate to dismiss the application for being out of time and for lack of prosecution. The relevant legal issues included the interpretation of section 587 of the Act, which allows the Commission to dismiss applications under various circumstances, and whether the application was made in accordance with the Act. Additionally, the Commission needed to assess whether the application was frivolous or vexatious or had no reasonable prospects of success, and whether the application could be dismissed on its own initiative.
The Commission concluded that the application could be dismissed for want of prosecution. The reasoning was based on the fact that the application was lodged outside the statutory timeframe and Mcnicol did not respond to the Commission's correspondence. The Commission found that the statutory provisions allowed for the dismissal of applications not made in accordance with the Act, and that the application in this case did not meet the necessary requirements. Consequently, the Commission decided to dismiss the application pursuant to section 587(3)(a) of the Act.
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