Maxwell Woods v Port Hunter Conveyors Pty Limited

[2023] FWC 2306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Maxwell Woods
v

Port Hunter Conveyors Pty Limited

(U2023/6214)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 SEPTEMBER 2023

Application for an unfair dismissal remedy.

Maxwell Woods (the applicant) began employment with Port Hunter Conveyors Pty Limited (the respondent) on the 20^th of June 2022 and he was allegedly dismissed on the 20^th of June 2023.
On the 10^th of July 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 Port Hunter Conveyors.
On the 18^th of August 2023, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 25^th of August 2023. No response was received at this time.
Further correspondence was sent to the applicant on the 29^th of August 2023. He was required to respond to this correspondence by 5:00pm the 1^st of September 2023. It was in this correspondence that the applicant was advised his matter would be dismissed without further notice, should my chambers not receive a response.
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

Maxwell Woods filed an application for unfair dismissal against his former employer, Port Hunter Conveyors Pty Limited, under section 394 of the Fair Work Act 2009. The applicant, who was employed by the respondent from 20 June 2022, claimed that his employment was terminated on 20 June 2023. Following this, the applicant submitted an application for a remedy for unfair dismissal on 10 July 2023. The respondent’s F3 – Employer’s Response Form, submitted in this matter, indicated that the legal business name of the respondent was Port Hunter Conveyors. On 18 August 2023, the Commission sent correspondence to the applicant regarding the discrepancy in the legal business name, requesting a response by 25 August 2023. No response was received from the applicant. Further correspondence was sent on 29 August 2023, advising that the application would be dismissed without further notice if the applicant did not respond by 5:00pm on 1 September 2023. The applicant failed to respond to this correspondence or any other communication from the Commission.

The central legal issue in this matter was whether the Commission had the jurisdiction to dismiss the application for unfair dismissal due to the applicant’s failure to respond to correspondence regarding a discrepancy in the legal business name. The Vice President examined section 587 of the Act, which outlines the circumstances under which an application can be dismissed. Specifically, section 587(3)(a) empowers the Commission to dismiss an application on its own initiative if the application is not being prosecuted. The Vice President noted that section 587(1) of the Act explicitly states that the Commission’s jurisdiction to dismiss an application is not limited to the circumstances specified in section 587(1)(a), (b) and (c). In light of the applicant's failure to respond to correspondence from the Commission, the Vice President concluded that the application was not being prosecuted.

The Vice President dismissed the application for unfair dismissal for want of prosecution under section 587(3)(a) of the Act. The decision to dismiss the application was based on the applicant's failure to respond to correspondence from the Commission regarding the discrepancy in the legal business name of the respondent. The Vice President held that the applicant's inaction constituted a lack of prosecution, thereby justifying the dismissal of the application. An order to that effect will issue with this decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established