Mr Darren Preston v W.A Hydromulch

[2023] FWC 213

[2023] FWC 213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Darren Preston
v

W.A Hydromulch

(U2023/173)

VICE PRESIDENT CATANZARITI SYDNEY, 24 JANUARY 2023

Application for an unfair dismissal remedy.

1. Darren Preston (the applicant) was employed by W.A Hydromulch (the respondent) from the 17^th of November 2021 until he was dismissed on the 5^th of December 2022.

1. On the 5^th of January 2023, the applicant made an application for a remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

1. The application was lodged 10 days out of time.
   
   

2. On the 13^th of January 2023, correspondence was sent to the applicant in relation to the matter being lodged out of time and he was required to respond by the 17^th of January 2023.
   
   

3. On the 18^th of January 2023, further correspondence was sent to the applicant directing him to provide a response by 5:00pm on the 20^th of January 2023. He was advised that in the absence of a reply, his application may be dismissed.

1. To date, the applicant has not responded to any of the correspondence that my Chambers has sent to this date.

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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