Matthew Hernandez v Layden Group Pty Ltd

[2023] FWC 1633

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Matthew Hernandez
v

Layden Group Pty Ltd

(U2023/4811)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 JULY 2023

Application for an unfair dismissal remedy.

Matthew Hernandez (the applicant) began employment with Layden Group Pty Ltd (the respondent) on the 21^st of November 2022 and was allegedly dismissed on the 31^st of May 2023.
On the 1^st of June 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was Layden Group.
On the 16^th of June 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 23^rd of June 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 26^th of June 2023, and he was required to respond by the 29^th of June 2023 at 5:00pm. It was in this correspondence the applicant was notified that if no response was received, his application would be dismissed without any further notice.
To date, the applicant has not responded to any of the correspondence sent by my Chambers.

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

CaseChat Overview and Summary

Matthew Hernandez lodged an application for unfair dismissal against Layden Group Pty Ltd, claiming he was dismissed without just cause or reason. The matter was heard by Vice President Catanzariti at the Fair Work Commission. The applicant, Mr Hernandez, commenced employment with the respondent on 21 November 2022 and was allegedly dismissed on 31 May 2023. The application for an unfair dismissal remedy was made on 1 June 2023, under section 394 of the Fair Work Act 2009. The Commission was required to determine whether the dismissal was unfair and if so, what remedy should be awarded.

The legal issue before the Commission was whether the application could be dismissed for want of prosecution. The respondent had identified a discrepancy in the legal business name provided by the applicant. The applicant was required to respond to correspondence sent by the Commission but failed to do so. The Commission considered section 587 of the Act, which sets out the circumstances under which an application may be dismissed. The Vice President concluded that the application could be dismissed for want of prosecution as the applicant had not responded to correspondence sent by the Commission.

The Vice President dismissed the application for want of prosecution pursuant to section 587(3)(a) of the Act. The decision was made on the basis that the applicant had failed to respond to correspondence sent by the Commission regarding a discrepancy in the legal business name. The Vice President noted that the words “without limiting when the FWC may dismiss an application” in section 587(1) of the Act establish that the Commission’s jurisdiction to dismiss an application is not limited to the circumstances set out in section 587(1)(a), (b) and (c). An order to that effect was made with the decision.

No remedy can be awarded as the application has been dismissed. The dismissal is without merit as the application was not prosecuted by the applicant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established