Mr Damien Barned v FVS Air-Conditioning and Electrical

[2022] FWC 3115

[2022] FWC 3115

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Damien Barned
v

FVS Air-Conditioning and Electrical

(U2022/9553)

VICE PRESIDENT CATANZARITI SYDNEY, 24 NOVEMBER 2022

Application for an unfair dismissal remedy.

1. Damien Barned (the applicant) was employed by FVS Air-Conditioning and Electrical (the respondent) from the 6^th of September 2022.

1. On the 26^th of September 2022, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).
   
   

2. The legal business name nominated by the respondent in their F3 – Employer’s Response Form in this matter was FVS Airconditioning and Electrical Pty Ltd.
   
   

3. On the 4^th of November 2022, correspondence was sent to the applicant in relation to the legal business name discrepancy and he was required to respond by the 11^th of November 2022. No response was received at this time.
   
   

4. Further correspondence was sent to the applicant on the 16^th of November 2022 and he was required to respond by the 5:00pm 16^th of November 2022. It was in this correspondence that the applicant was advised his application would be dismissed without any notice if no response was received.
   
   

5. To date, the applicant has not responded to any of the correspondence sent by my Chambers.

1. 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.

1. 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).

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

1. An order to that effect will issue with this decision.

VICE PRESIDENT

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