Michael Hooker v Garock Pty Ltd

[2019] FWC 4635

[2019] FWC 4635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Hooker
v
Garock Pty Ltd
(U2019/2383)

VICE PRESIDENT CATANZARITI BRISBANE, 4 JULY 2019

Application for an unfair dismissal remedy.

[1] Mr Michael Hooker commenced employment with Garock Pty Ltd (the Respondent) in 2004. He alleges his dismissal took effect on 26 February 2019. The Respondent states his dismissal took effect on 29 January 2019.

[2] On 4 March 2019, Mr Hooker made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). If the Respondent’s version of events is accepted, the application was lodged 13 days outside the 21-day period prescribed by s.394(2) of the Act.

[3] On 19 March 2019, the Respondent filed an Employer’s Response (Form F3), raising a jurisdictional objection on the basis that Mr Hooker’s application was made out of time.

[4] Despite its objection, the Respondent agreed to attend conciliation. The conciliation took place on 28 May 2019, but did not resolve the matter.

[5] The matter was referred to me to determine the jurisdictional objection. My chambers sent correspondence to Mr Hooker on 13 June 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 4:00 pm on 20 June 2019. No response was received from Mr Hooker.

[6] On 26 June 2019, further correspondence was sent to Mr Hooker, directing him to provide a response by 4:00 pm on 1 July 2019. He was advised that in the absence of a reply, his application may be dismissed.

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

[8] 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.”

[9] 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 ss.587(1)(a), (b) and (c).

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

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

VICE PRESIDENT

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