Michael Bernard Smith v MTA Contracting

[2019] FWC 7128

[2019] FWC 7128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Bernard Smith
v
MTA Contracting
(U2019/9160)

VICE PRESIDENT CATANZARITI SYDNEY, 17 OCTOBER 2019

Application for an unfair dismissal remedy.

[1] On 16 August 2019, Michael Smith applied for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act) in respect of his employment with MTA Contracting (the Respondent). Mr Smith stated that his dismissal took effect on 11 July 2019. The Respondent says that Mr Smith’s dismissal took effect on 4 July 2019.

[2] On 27 August 2019, the Respondent filed an Employer’s Response (Form F3), raising a jurisdictional objection on the basis that Mr Smith’s application was lodged out of time.

[3] On 27 September 2019, my chambers sent Mr Smith correspondence about the extension of time issue. It noted that, even accepting the later date of effect, he had lodged his application 15 days outside the 21-day period prescribed by s.394(2) of the Act. I directed him either to provide a statement by 4:00 pm on 4 October 2019 in support of obtaining an extension of time in which to validly lodge his application, or confirm that he wished to rely solely on the information provided in his originating application. However, no response was received.

[4] On 8 October 2019, my chambers sent further correspondence to Mr Smith, directing him to respond by 4:00 pm on 11 October 2019, and advising that if he did not respond, his application may be dismissed.

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

[6] 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.”

[7] 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).

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

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

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR713364>