Michael Srbinovski v Coles Supermarkets Australia Pty Ltd
[2022] FWC 1583
•22 JUNE 2022
| [2022] FWC 1583 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Michael Srbinovski
v
Coles Supermarkets Australia Pty Ltd
(U2022/5054)
| DEPUTY PRESIDENT EASTON | SYDNEY, 22 JUNE 2022 |
Application for an unfair dismissal remedy – unfair dismissal application filed out of time – section 587 – application dismissed.
On 4 May 2022 Mr Michael Srbinovski applied to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Coles Supermarkets Australia Pty Ltd (Coles).
Section 394(1) of the Act requires that an unfair dismissal remedy must be made within 21 days after the dismissal took effect (per s.394(2)), or within such further period as the Commission allows if there are exceptional circumstances (per s.394(3)).
Mr Srbinovksi was notified of his dismissal on 18 March 2022 and the dismissal took effect on 6 April 2022. Section 394 of the Act required Mr Srbinovski to commence his unfair dismissal remedy application by 27 April 2022. Mr Srbinovski did not file his application until 4 May 2022 and therefore requires and extension of time.
Directions were made on 27 May 2022 for Mr Srbinovski to file his materials in relation to his application for an extension of time by no later than 4:00pm on 3 June 2022.
Mr Srbinovski did not file any material by 3 June 2022 and has not responded to any of the emails, messages via SMS or phone calls from the Commission since then.
On 9 June 2022 Mr Srbinovski was asked by email to indicate by 4:00pm on 10 June 2022 whether he intended to proceed with his application. The hearing of Mr Srbinovski’s application for an extension of time was listed for Thursday 23 June 2022. Mr Srbinovski did not reply to this request.
On 15 June 2022 a further email was sent to Mr Srbinovski advising that I was considering dismissing his application under s.587(1)(c) of the Act. Mr Srbinovski was directed to file any evidence and submissions he wished to make as to why the matter should not be dismissed under s.587 by no later than 4:00pm on 17 June 2022. Again no response was received from Mr Srbinovski.
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.”
The power of the Commission to summarily dismiss an application should be sparingly employed and approached with caution.[1] This is because such a decision results in the complete extinguishment of an applicant’s right to have their application heard and determined according to law before they have had their ‘day in court’.[2]
Numerous attempts have been made to contact Mr Srbinovski since the first Telephone Directions Hearing. Mr Srbinovski has failed to engage with the application, has shown no willingness to prosecute his case and has taken no steps to do so.
In these circumstances, I am satisfied that I should exercise my discretion under s.587(1)(c) of the Act and dismiss Mr Srbinovski’s application because it has no reasonable prospects of success.[3]
DEPUTY PRESIDENT
[1] General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Others (1964) 112 CLR 125 at 128-9.
[2] John Cole v Roy Hill Station Pty Ltd T/A Roy Hill Station[2019] FWCFB 2925 at [31].
[3] PR742912.
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